McIntyre v. United States

United States Court of Appeals
For the First Circuit

No. 03-1823

EMILY MCINTYRE, as Administrator of the Estate of John L.
McIntyre; CHRISTOPHER MCINTYRE, as Co-administrator of the Estate
of John L. McIntyre,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee,

H. PAUL RICO; JOHN MORRIS; JOHN J. CONNOLLY; RODERICK KENNEDY;
ROBERT FITZPATRICK; JAMES RING; JAMES GREENLEAF; JAMES AHEARN;
KEVIN J. WEEKS; JAMES J. BULGER; STEPHEN FLEMMI;
JOHN DOES, Nos. 1-50,

Defendants.

No. 03-1791

LAWRENCE A. WHEELER, Individually and as Special Administrator of
the Estate of Roger M. Wheeler; PATRICIA J. WHEELER, Individually
and as Special Administratrix of the Estate of Roger M. Wheeler;
PAMELA (WHEELER) NORBERG; DAVID B. WHEELER; MARK K. WHEELER,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee,

JOHN J. CONNOLLY, JR.; JOHN M. MORRIS; H. PAUL RICO;
ROBERT FITZPATRICK; JAMES A. RING; JAMES GREENLEAF;
JAMES AHEARN; JAMES J. BULGER, a/k/a Whitey;
STEPHEN J. FLEMMI, a/k/a The Rifleman; JOHN V. MARTORANO;
JOHN DOES, Nos. 1-50,
 Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald G. Lindsay, U.S. District Judge]

Before

Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.

William E. Christie, with whom Steven M. Gordon and Shaheen &
Gordon, P.A. were on brief, for appellants Emily McIntyre and
Christopher McIntyre.

Richard A. Olderman, Attorney, Appellate Staff, with whom
Robert S. Greenspan, Attorney, Appellate Staff, Peter D. Keisler,
Assistant Attorney General, and Michael J. Sullivan, United States
Attorney, were on brief, for appellee United States in the McIntyre
case.

Frank A. Libby, Jr., with whom Douglas S. Brooks and Kelly,
Libby & Hoopes, P.C. were on brief, for appellants Lawrence A.
Wheeler, Patricia J. Wheeler, Pamela (Wheeler) Norberg, David B.
Wheeler, and Mark K. Wheeler.

Richard A. Olderman, Attorney, Appellate Staff, with whom
Robert S. Greenspan, Attorney, Appellate Staff, Peter D. Keisler,
Assistant Attorney General, Michael J. Sullivan, United States
Attorney, and Jeffrey S. Bucholtz, Deputy Assistant Attorney
General, were on brief, for appellee United States in the Wheeler
case.

May 10, 2004
 LYNCH, Circuit Judge. These two cases involve claims

against the United States under the Federal Tort Claims Act (FTCA),

28 U.S.C. § 2671 et seq., arising out of alleged wrongful actions

of FBI agents.

On September 15, 1999, a diligent federal trial judge

sitting in an organized crime case issued a lengthy opinion

outlining a possible pattern of corruption involving at least two

FBI agents, John Connolly and his supervisor John Morris, and two

notorious Boston criminals, James "Whitey" Bulger and Stephen "the

Rifleman" Flemmi. See United States v. Salemme, 91 F. Supp. 2d 141

(D. Mass. 1999). Such corruption had been rumored but had been

denied by the FBI.

The 1999 opinion by Judge Wolf revealed that Bulger and

Flemmi, who were leaders of the Winter Hill Gang, a crime syndicate

involved in murder, bribery, extortion, loansharking, and gambling

operations, had been high-level FBI informants since the 1970s,

aiding the agency in its investigation of La Cosa Nostra, a rival

crime syndicate. The opinion raised the prospect that Bulger and

Flemmi had received numerous benefits from the FBI in return,

including protection from prosecution, and at times, access to the

names of informants who were themselves providing information to

the FBI about the criminal activities of Bulger and Flemmi. Id. at

148-63, 322. Some of the informants may have been killed as a

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result, and the murderous activities of Bulger and Flemmi covered

up. Id. at 208-13.

The opinion speculated that Agent Connolly may have

disclosed to Bulger and Flemmi the identity of an individual, John

McIntyre, who was an informant for the local Quincy police and was

debriefed by the FBI, United States Customs Service, and the Drug

Enforcement Administration (DEA). Id. at 213-15. McIntyre

disappeared roughly six weeks after an October 17, 1984 interview

with FBI Agent Roderick Kennedy, in which McIntyre had linked

Bulger to gun-running and drug-smuggling operations. Id. His body

was found fifteen years later, on January 14, 2000, in a makeshift

grave near Boston. But the opinion, published in September 1999,

ultimately concluded that it could not be determined whether FBI

Agent Kennedy had, in fact, shared this information about McIntyre

with Connolly and whether Connolly, in turn, had told Bulger. Id.

at 214-15. That was because, as the court said later, "important

FBI documents concerning John McIntyre were . . . improperly

withheld by agents of the Boston FBI until it was too late to

question relevant witnesses concerning them." United States v.

Flemmi, 195 F. Supp. 2d 243, 249-50 (D. Mass. 2001).

The opinion also indicated the likelihood that Agent

Connolly had disclosed to Bulger the name of another informant as

to Bulger's crimes, Brian Halloran. In January 1982, Halloran told

two FBI agents that Bulger and Flemmi had caused the 1981 murder of

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a Tulsa businessman, Roger Wheeler. Connolly learned of Halloran's

cooperation and disclosed it to Bulger. Halloran was murdered in

May 1982. Salemme, 91 F. Supp. 2d at 208-210. Agent Morris

testified to this sequence of events in hearings before Judge Wolf

in April 1998.

Agent Connolly was indicted on October 11, 2000 and

charged with numerous crimes, including "alert[ing] Bulger and

Flemmi to the identity of confidential law enforcement informants

in order to protect Bulger's and Flemmi's ongoing criminal

activities" and taking other steps to protect Bulger and Flemmi.

Connolly was charged with inducing Agent Morris to do the same, in

violation of Morris's legal obligations. Among the several

racketeering acts charged was that Connolly had told Bulger and

Flemmi of Halloran's statements that Bulger and Flemmi had caused

Wheeler's murder. In turn, the indictment charged, Bulger caused

Halloran to be murdered. Connolly was convicted, and his

conviction was affirmed on appeal. United States v. Connolly, 341

F.3d 16 (1st Cir. 2003).

On May 25, 2000, the estate of John McIntyre, through its

administrator (McIntyre's mother, Emily McIntyre) and co-

administrator (McIntyre's brother, Christopher McIntyre), filed an

administrative claim against the United States under the FTCA.1

The essence of the theory behind the claim was that the FBI had (i)

1
We refer to the plaintiff in this case as McIntyre.

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directly caused the death of John McIntyre, when Agent Connolly

informed Bulger and Flemmi that McIntyre was cooperating with

certain authorities investigating Bulger and Flemmi, thus signing

McIntyre's death warrant, and (ii) indirectly caused McIntyre's

death through the protection the FBI afforded Bulger and Flemmi,

which encouraged and enabled them to commit murders, including that

of McIntyre.2 A second administrative complaint was filed on June

8, 2000.

On May 11, 2001, the estate of Roger Wheeler, the

murdered Tulsa businessman, filed an administrative claim under the

FTCA against the United States. The theory of the claim was that

the FBI's illicit protection of Bulger and Flemmi had facilitated

the murder of Roger Wheeler.3 This legal theory differed from that

articulated in the McIntyre case, as there was no direct

relationship between the FBI and Wheeler.

2
Specifically, the estate asserted legal theories of (a)
conspiracy to protect Bulger and Flemmi from arrest and prosecution
as a proximate cause of McIntyre's kidnaping, torture and execution
in violation of McIntyre's First, Fourth, and Fifth Amendment
rights; (b) violation of those same Fourth and Fifth Amendment
rights, stated as claims under Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971); and (c) wrongful death, in violation of Mass.
Gen. Laws ch. 229, §§ 2, 6.
3
Both the Wheeler and McIntyre administrative claims also
included claims that FBI agents had obstructed and impeded the
investigation of the respective murders. But in their suits in
federal court, both sets of plaintiffs raised cover-up claims only
against individual FBI agents, not against the United States
itself.

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 The United States failed to act on either claim within

the required six-month period, thus giving both estates the option,

which they took, of treating those claims as having been denied.

See 28 U.S.C. § 2675(a). In due course, both filed suit against

the United States as well as various FBI agents in the Boston

office, Bulger, Flemmi, and other members of the Winter Hill Gang.

McIntyre's claims against the United States consisted of

(1) three counts under Mass. Gen. Laws ch. 229, § 2 for civil

conspiracy, negligence, and supervisory liability, causing

McIntyre's death and (2) three counts under Mass. Gen. Laws ch.

229, § 6, corresponding to the three counts under § 2, for

negligently causing McIntyre's conscious suffering while he was

kidnapped, tortured and killed.

The claims of the Wheeler estate were joined by Roger

Wheeler's widow and four of his five children, suing individually.4

The Wheelers' claims against the United States sought to hold it

directly and vicariously liable for (1) two counts of tortious

conduct causing Wheeler's death under Mass. Gen. Laws ch. 229, § 2;

(2) two counts of causing Roger Wheeler's conscious suffering the

moments immediately before his murder under Mass. Gen. Laws ch.

229, § 6; and (3) one count of causing emotional distress to

Wheeler and his family.

4
We refer to the estate and individual plaintiffs in this
case as the Wheelers.

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 The United States moved to dismiss in both suits on the

ground that neither set of plaintiffs filed their administrative

claims within the required two-year period from the accrual of the

cause of action. See 28 U.S.C. § 2401(b). The district court

agreed in both cases. McIntyre v. United States, 254 F. Supp. 2d

183, 193 (D. Mass. 2003); Wheeler v. United States, No. 02-10464-

RCL (D. Mass. March 31, 2003). This consolidated appeal is from

the dismissals of the FTCA claims against the United States and

reviews the single issue, on two sets of facts, of when the claims

"accrued" for FTCA purposes. To be timely, the McIntyre claims had

to accrue on or after May 25, 1998, and the Wheeler claims on or

after May 11, 1999.

I.

The following facts are presented in the light most

favorable to the plaintiffs. See Muniz-Rivera v. United States,

326 F.3d 8, 11 (1st Cir. 2003). The facts are drawn from the two

complaints and the materials submitted to the district court on the

respective motions to dismiss. Gonzalez v. United States, 284 F.3d

281, 288 (1st Cir. 2002) (on a motion to dismiss pursuant to Fed.

R. Civ. P. 12(b)(1), the court may look to supplemental materials

in addition to pleadings). We also draw on facts found in United

States v. Salemme, supra.

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A. Factual and Procedural Background Relevant to McIntyre

In mid-October 1984, John McIntyre began cooperating with

Richard Bergeron of the Quincy Police Department. Salemme, 91 F.

Supp. 2d at 213. McIntyre told Bergeron that he was an engineer on

a ship named the Valhalla that had been used in an unsuccessful

attempt to deliver guns and ammunition from Massachusetts to the

Irish Republican Army (IRA) in Ireland. He said that he worked for

Joseph Murray, who secretly owned the Valhalla and was closely

connected to Bulger, and that Bulger was involved in the attempted

arms shipment through his associates Kevin Weeks and Patrick Nee.

McIntyre also mentioned Flemmi. Id. Bergeron told Agent Roderick

Kennedy, an FBI liaison officer, that McIntyre was cooperating and

that McIntyre had linked Bulger and his associates to the Valhalla.

Bergeron arranged for agents from the DEA and United States Customs

Service, along with Agent Kennedy, to participate in McIntyre's

debriefing. Kennedy and a Customs agent interviewed McIntyre on

October 17, 1984. McIntyre told them that Bulger's associate

Patrick Nee had traveled to Ireland to meet the Valhalla. Id. at

214. McIntyre also told them that Murray was partners in a

separate drug smuggling operation with "an individual named Whitey

who operates a liquor store in South Boston," whom Kennedy

understood to be Bulger. Id. Around November 30, 1984, McIntyre

disappeared.

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 Christopher McIntyre, John's brother, stated by affidavit

that he and Emily McIntyre, John's mother, filed multiple missing

persons reports with the Quincy police. Christopher said that the

government told him on one occasion that the "mob" had murdered

John, but later told him that John was "alive, a fugitive from

justice and would be prosecuted if caught." Emily also stated by

affidavit that she had made "repeated requests" to the government

for information or help in finding her son but received none.

Instead, she said, government agents told her that "John was a

fugitive." In a 2000 Boston Herald interview, both Emily and

Christopher said that they had suspected Bulger's hand in John's

disappearance in 1984 but said nothing out of fear.

On April 15, 1986, although McIntyre was still missing,

a grand jury indicted him along with Murray, Nee, and four others

for their roles in the Valhalla operation and drug smuggling.

Bulger and Flemmi were not named as defendants or otherwise

mentioned in the indictment. The grand jury returned a superseding

indictment on May 8, 1986, which again did not name Bulger or

Flemmi as defendants. The court then issued a warrant for

McIntyre's arrest. On September 6, 1995, a note appeared in the

docket of the Valhalla prosecution: "Case reopened as to John

Crawley, John McIntyre, Michael Nigro. NOTE: Case previously

closed in error. Defendants Crawley, McIntyre and Nigro remain

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fugitives." The case remained open until March 20, 2000, when

McIntyre's death had been confirmed.

Meanwhile, on April 16, 1986, shortly after the first

indictment, attorney John Loftus, acting on behalf of Emily, Chris,

and Patricia McIntyre, John's sister, sent a letter to the Attorney

General, United States Customs Service, DEA, State Department, and

United States Attorney for the District of Massachusetts. The FBI

was not one of the addressees on the letter. The letter, whose

subject line was "Re: Wrongful Death of John L. McIntyre," alleged

that John McIntyre was a government informant concerning IRA gun-

running in Boston, that federal authorities leaked his informant

status to the British government, and that the British government

told the IRA, resulting in McIntyre's abduction and murder.

On June 2, 1986, Emily McIntyre asked the Veterans

Administration (VA) to erect a headstone marker for her son at the

Massachusetts National Cemetery.

On September 20, 1988, the Boston Globe ran a report

describing Bulger as an FBI informant and raising the possibility

that Bulger "has been able to exploit his cachet with the FBI" to

evade investigation and apprehension by the state police and the

DEA. The article suggested that the FBI may have tipped Bulger off

to recording devices in his home and car and to the timing of sting

operations. But it did not raise the possibility that the FBI

leaked information to Bulger about informants in his own

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organization or shielded him from prosecution for crimes like

murder. Nor did the article mention McIntyre. The article

reported that

State Police officials . . . asked the FBI to
conduct an internal inquiry. The FBI cleared two agents,
and the FBI leadership remains outraged at the suggestion
that any of its own would engage in that kind of
treachery.
James F. Ahearn, special agent in charge of the FBI
in Boston, was unequivocal when asked last month if
Bulger has had relations with the FBI that have left him
free of its scrutiny.
"That is absolutely untrue," said Ahearn. "We have
not had evidence that would warrant it and if we do
develop anything of an evidentiary nature, we will pursue
it. We specifically deny that there has been special
treatment of this individual." He declined to make any
further comment on the matter and instructed Connolly not
to speak on the subject.

In 1989, Emily McIntyre and Loftus published Valhalla's

Wake: The IRA, MI6, and the Assassination of a Young American

(Atlantic Monthly Press). In the book, they indicated awareness

that John had ties to the IRA and the "Mob" and that he faced

possible "Mob[] retribution" for his cooperation with the

government. They stated that John's blue pickup truck had been

spotted at Murray's place of business and that it was later found

under a bridge with his uncashed VA check inside. But they

ultimately theorized that British intelligence was responsible for

John's murder. Based on the McIntyre family's own investigation

into John's death, which involved interviews with "an IRA courier"

and a "source" within British intelligence, the book speculated

that British intelligence had its own mole in the Valhalla,

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discovered from United States Customs agents that McIntyre was an

informant on a related drug-smuggling operation, falsely told the

IRA that McIntyre was an informant on the Valhalla operation to

divert attention from the British mole, and then murdered McIntyre

to prevent him from refuting the story.

In October 1991, Emily McIntyre applied to the VA for

death benefits under her son's policy.

In the early to mid-1990s, the Boston Globe published a

series of articles on McIntyre's disappearance. One of those

articles, appearing on December 24, 1992, stated that Sean

O'Callaghan, a former IRA operative, had tipped off the Irish

police to the 1984 Valhalla shipment and that the IRA may have

mistakenly suspected McIntyre of being the leak and murdered him.

The story, which quoted Emily McIntyre, said that "[m]ost

authorities believe McIntyre was done in by his associates, . . .

most of whom were in the now-defunct Winter Hill Gang" headed by

Bulger. The article noted that when Bulger heard that the Valhalla

had been seized, he said, in a conversation secretly recorded by

DEA bugs in his apartment, "That's our stuff," and that McIntyre

was last seen with Patrick Nee, a Bulger associate. But the story

made no connection between the FBI and McIntyre's death. In fact,

in response to Emily McIntyre's theory that her son had been killed

by British intelligence, the article noted that "federal

investigators familiar with the Valhalla case say there is no

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evidence that McIntyre was fingered by any agent of the US, Irish,

or British governments" (emphasis added).

On January 29, 1995, a second article in the Boston Globe

reported that "authorities in the United States" had called

"ludicrous" any claim that "the US government negligently allowed

[McIntyre] to be killed." The story indicated that government

officials were not the only ones who might have known that McIntyre

was an informant, stating that "[r]umors that [John] McIntyre was

talking [to the federal government] were rampant" and citing Emily

McIntyre as saying that Customs agents had "openly tailed [her

son], and were parked outside her home the last night she saw her

son."

Then, on December 11, 1996 and June 14, 1997, the Boston

Globe published two more articles reporting that law enforcement

officials believed McIntyre had been killed by the Winter Hill

Gang. The December 11 article, which quoted Emily McIntyre, stated

that "[f]ederal agents believe McIntyre was killed by Boston

gangsters who suspected him of informing against them." The June

14 article was more specific. It theorized that Bulger had

compromised the Valhalla operation, after taking a hefty profit

from it, by tipping off the Central Intelligence Agency (CIA).

Relying on witness statements and other evidence, the article

suggested that, afterwards, Bulger and Flemmi nonetheless tortured

McIntyre to find out what he had told authorities about the gun-

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running and marijuana smuggling operations, and then killed him,

disposing of his body at sea. Neither article made any mention of

FBI involvement.

At around the time of the second article, in 1997, more

details of the relationship between Bulger and Flemmi and their FBI

handlers came to light through the prosecution of Flemmi in the

case of United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass.

1999). In Salemme, on January 10, 1995, a grand jury indicted

Bulger and Flemmi, along with five others who were members of

either La Cosa Nostra or the Winter Hill Gang, of RICO conspiracy

and various other federal crimes. Id. at 301. Three more

superseding indictments were obtained, with the last coming on July

2, 1996. Id. at 306. None of the indictments mentioned McIntyre's

disappearance, although several referred to murders committed by

Bulger and Flemmi.

In April 1997, in the process of addressing the

defendants' motion to suppress some electronic surveillance

evidence, Judge Wolf, who was presiding over the Salemme case,

discovered earlier filings in the case before a magistrate judge

that suggested that Bulger and Flemmi were FBI informants. Id. at

308. This information raised questions about, inter alia, whether

the FBI had given Bulger and Flemmi immunity from prosecution for

their ongoing criminal conduct.

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 In a June 6, 1997 order, over the FBI's objections, Judge

Wolf revealed that the FBI had, in response to a court order,

confirmed in a closed hearing that Bulger was an informant. United

States v. Salemme, 978 F. Supp. 364, 365 (D. Mass. 1997). The

order also revealed that Flemmi was an informant. Id. at 373. In

a June 25, 1997 affidavit, Flemmi stated that Agent Morris had

assured him that he and Bulger could be involved in any criminal

activities short of murder and would be protected by the FBI.

Salemme, 91 F. Supp. 2d at 310. Flemmi's affidavit was not sealed

and an account of his statements was published the next day in the

Boston Globe. Several months later, on September 3, 1997, Flemmi

submitted under seal a motion to dismiss, claiming, inter alia,

that the FBI had promised him immunity. Id. at 311. The motion

was unsealed, over government objections, on September 10. Id.

Several months later, on December 5, 1997, the Boston

Herald made public that the Department of Justice had conducted its

own probe into Bulger and Flemmi's relationship with their

handlers. The article reported that Judge Wolf had said at a

hearing the previous day that the Office of Professional

Responsibility had launched an internal probe and found "no

evidence of continuing criminal conduct within the statute of

limitations" by Agents Morris and Connolly. Some details of this

investigation were later revealed in Judge Wolf's opinion in

Salemme, issued on September 15, 1999:

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 In late June 1997, the Attorney General established a
task force of Department of Justice and FBI personnel to
investigate the allegations of misconduct raised by
Flemmi and the motions to suppress. That task force
conducted its investigation in July and early August
1997, and issued a confidential report to the Attorney
General. With the agreement of the government, the court
reviewed the Executive Summary of that report and some of
the documents that the investigation generated in order
to decide certain issues concerning discovery . . . .

91 F. Supp. 2d at 310. Nothing in the record indicates that the

underlying facts of the Office of Professional Responsibility

investigation were otherwise made public at the time. But from our

review of the docket in the Salemme case, it is clear that the

government repeatedly sought, at around this time, to keep Flemmi's

allegations of government misconduct and the government's response

to them under seal.

Judge Wolf held a series of evidentiary hearings from

January to October 1998 on the subject of Flemmi's claim of

immunity. Id. at 312. These hearings were open to the public.

Emily McIntyre attended part of a hearing on April 15, 1998. In an

article the next day, the Boston Herald reported that at that

hearing, Robert Stutman, the former local chief of the DEA,

testified that "agents in his office 'swore' that the FBI

compromised their Flemmi-Bulger probe to the point where the pair's

bureau 'handler' was unwelcome at DEA's offices." Stutman

admitted, however, that he had no proof of FBI wrongdoing and that

he "d[id]n't know now" if "the FBI [had] burn[ed] us on [the]

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investigation." Nothing in the record indicates that Stutman ever

mentioned McIntyre in his testimony.

One week later, on April 22, Morris testified, under a

grant of immunity, that he had told Connolly in early 1982 that

another FBI informant, Brian Halloran, had said that Bulger and

Flemmi asked him to murder Roger Wheeler. Id. at 209. Morris

testified that Connolly told him that he had passed the information

on to Bulger and Flemmi. Halloran was murdered shortly thereafter

on May 11, 1982. The Boston Herald ran a story on April 23

summarizing Morris's testimony. As with Stutman, nothing indicates

that Morris ever mentioned McIntyre in his testimony.

On May 20, 1998, another DEA agent, Albert G. Reilly,

testified about the Valhalla. The Boston Globe summarized Reilly's

testimony the next day with the headline "DEA unable to link Bulger

to IRA guns." The story recounted that "authorities now believed

that Bulger had tipped off authorities to the gun-smuggling

operation and that he and Flemmi tortured a Quincy man, John

McIntyre, who was suspected of cooperating with the authorities"

(emphasis added). The story did not say, however, that the FBI had

tipped off Bulger as to McIntyre's identity as an informant. The

article also stated that Reilly had testified that he, like

Stutman, believed the DEA's investigation of Bulger and Flemmi had

been compromised by the FBI but had no way to prove it.

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 In early June 1998, after the May 25, 1998 critical date

for accrual of the McIntyre claims had passed, Richard Bergeron of

the Quincy Police Department testified about McIntyre's cooperation

and disappearance. Id. at 213. As best we can tell, Bergeron's

testimony was the first piece of evidence presented in the Salemme

proceedings that provided direct information about McIntyre's

disappearance. Bergeron testified that McIntyre was "petrified" of

the people he was implicating and that McIntyre was not the type of

potential witness whose cooperation could be publicly disclosed.

Bergeron then said that he told FBI Agent Kennedy that McIntyre had

implicated Bulger and his associates in the Valhalla operation. He

testified that he had arranged for Kennedy and a Customs agent to

interview McIntyre. Id. at 214. Kennedy had testified earlier, on

April 14, 1998, that he and Connolly often exchanged information.

Other evidence also indicated that Kennedy had participated in

protecting Bulger and Flemmi from investigation on previous

occasions. Id. But, because the government, apparently in

violation of discovery orders, did not produce Kennedy's reports of

his interview of McIntyre until after Kennedy had testified,

Kennedy was never questioned about whether he had passed on the

information about McIntyre to Connolly and, if so, whether Connolly

had told Bulger and Flemmi. Kennedy was not recalled to the

witness stand to provide this information. Id.

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 During Bergeron's cross-examination, the prosecution

asked him what individuals, to his knowledge, knew that McIntyre

was cooperating with authorities and might have passed on that

information. When defense counsel objected, the prosecution stated

that its line of questioning was in response to the implication

that "it was the FBI who may have leaked this [information to

Bulger and Flemmi] when there's literally a dozen people" other

than the FBI who could have done so (emphasis added). The

prosecution was explicit that the evidence was so speculative that

the court "shouldn't infer that there was some leak from the FBI

that led to Mr. McIntyre's disappearance" (emphasis added). The

prosecution then went on to establish that, in addition to the FBI,

the Quincy police, the Customs Service, and the DEA all knew of

McIntyre's cooperation. The prosecution also established that

McIntyre had spoken to authorities about a number of "notorious

criminals," as well as the IRA, "[a]ll of whom would have had a

motive to make him disappear."

Judge Wolf published a 260-page opinion in the

Salemme case on September 15, 1999, well after the cut-off date for

accrual of McIntyre's claims. As to McIntyre's disappearance, he

concluded,

[T]here is circumstantial evidence to suggest that
Kennedy may have told Connolly about McIntyre's
cooperation and claims and, in view [of] the Halloran
matter, reason to be concerned that Connolly may have
told Bulger and Flemmi. These issues cannot, however, be
resolved on the present record.

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Id. at 214-15.

McIntyre's body was recovered on January 14, 2000. Kevin

Weeks, a Bulger associate, led law enforcement to McIntyre's

makeshift grave. Flemmi, 195 F. Supp. 2d at 251 n.45.

On May 25, 2000, McIntyre's estate filed a notice of tort

claim with the FBI.

On September 27, 2000, a grand jury returned a

superseding indictment of Bulger and Flemmi that alleged that in

October or November of 1984, Bulger and Flemmi learned that

McIntyre was cooperating with the FBI and Customs Service regarding

Bulger's involvement in both the Valhalla operation and the

importation of marijuana by boat into Boston, and, as a result,

kidnapped and murdered McIntyre. The indictment did not say how

Bulger and Flemmi discovered McIntyre's cooperation. On October

11, 2000, Connolly was indicted for his role in various murders

committed by Bulger and Flemmi, but not for any role in McIntyre's

murder.

On March 8, 2001, McIntyre's estate filed suit in federal

district court. McIntyre's claim was the first administrative

claim and first federal action to be filed arising from the FBI's

relationship with Bulger and Flemmi. On October 15, 2001, the

United States moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)

on the ground that McIntyre's estate had failed to present its

-20-
administrative claims within two years of accrual, as required by

the FTCA, 28 U.S.C. § 2401(b).

On March 31, 2002, the district court granted the motion,

finding that the claims had accrued before April 1998. The court

reasoned that, prior to April 1998, the McIntyres clearly believed

John McIntyre to be dead and had sufficient facts to support a

reasonable inference that Bulger and Flemmi had killed him, based

on local press reports that McIntyre was last seen with Nee, a

Bulger associate, and that Bulger ran the Valhalla operation. The

court also determined that the McIntyres had enough information to

form the theory that "the FBI was at least negligent in [its]

handling of Bulger and Flemmi." The court relied principally on

(1) the FBI's acknowledgment in 1997 that Bulger and Flemmi were

informants and (2) the April 15, 1998 hearing, attended in part by

Emily McIntyre, in which DEA Agent Stutman testified about his

suspicions that the FBI had compromised a DEA investigation of

Bulger and Flemmi. Final judgment was entered on motion of

McIntyre's estate. The estate timely appealed.

B. Factual and Procedural Background Relevant to Wheeler

Roger Wheeler, a Tulsa businessman, owned World Jai Alai

(WJA), which operated facilities where spectators could bet on Jai

Alai matches. Salemme, 91 F. Supp. 2d at 208. John Callahan, who

had ties to the Winter Hill Gang, was president of WJA. Id.

Wheeler suspected that Callahan was skimming money from WJA for

-21-
members of the Winter Hill Gang, including Bulger and Flemmi.

Wheeler fired Callahan and began an audit of WJA's financial

operations. Id. at 209. Before the audit was completed, on May

27, 1981, Wheeler was shot to death while sitting in his car in the

parking lot of a Tulsa country club. Id. at 207-08.

The Wheeler murder remained unsolved for many years. In

the spring of 1995, David and Lawrence Wheeler, two sons of Roger

Wheeler, visited the FBI's office in Tulsa to deliver some of their

father's records requested by the office. They stated that they

were unhappy with the lack of progress in the investigation.

According to David Wheeler's affidavit, FBI Agent Jack Hawkins

replied, "[I]f we do that, we will have to go wherever the evidence

might lead us . . . and you know, it might actually take us to some

involvement on the part of your mother. Are you willing to see

your mother go to jail?" David Wheeler interpreted this as a

threat intended to deter future complaints about the FBI's lack of

progress.

The Tulsa World and the Daily Oklahoman published at

least twelve articles on Wheeler's murder between 1995 and 1999.

At the time, Patricia (Wheeler's widow), Pamela (Wheeler's

daughter), and Lawrence (one of Wheeler's sons) were living in

Tulsa. David, along with another of Wheeler's sons, Mark, was

living in Texas. Patricia and David stated by affidavit that they

recalled reading some of the Oklahoma press coverage. Lawrence and

-22-
Mark recalled reading one or two articles, and Pamela said she did

not read any of them.

On January 19, 1995, the Tulsa World published a story

stating that Brian Halloran had told the FBI that John Callahan

offered him a contract to kill Wheeler, but that Halloran refused

the offer. The article noted that Halloran was murdered shortly

thereafter in 1982. On July 11, 1997, as proceedings in the

Salemme trial were developing, the Tulsa World reported that Bulger

and Flemmi were "potential suspects" in Wheeler's murder and that

Flemmi had executed an affidavit stating that he and Bulger were

informants and "were given free reign from an FBI supervisor to

commit any crime as long as they did not 'clip anyone.'" On

November 9, 1997, a Tulsa television station reported that the

Wheeler investigation "ha[d] been held up by the FBI's attempts to

bring down the Mafia in Boston" and that "the FBI did not share

information it had about the death of Roger Wheeler Senior." The

next day, the Tulsa World reported that "[i]nvestigators said that

the prime suspects in Wheeler's killing turned out to be two highly

placed mob informants, working with the Boston FBI" and that the

"Boston FBI protected their informants, James 'Whitey' Bulger and

Steven [sic] 'The Rifleman' Flemmi."

On May 10, 1998, David Wheeler was interviewed by Ed

Bradley on CBS's "60 Minutes" program. The following exchange was

televised:

-23-
 Bradley: David Wheeler, Roger Wheeler's son, says he had
trouble understanding why his father's murder had
remained unsolved for so long. Until he found out Bulger
and Flemmi were FBI informants.

Wheeler: We've discovered that all along the FBI has been
in bed with the prime suspects in my father's murder.

Bradley: So you believe that the FBI protected your
father's killers and tried to prevent the truth from
coming out?

Wheeler: They not only protected my father's killers,
they to this day are protecting my father's killers and
they are to this day withholding information from the
police. This is eighteen years of covering up the crime.
This is eighteen years of being an accessory to murder.

At the close of the segment, David Wheeler also said, "In the end,

there's one group, one group of people, that were supposed to help

us, and that was the FBI, and those are the very people that

betrayed us, those are the very people that continue to betray us

to this day."

During the segment, Bradley said that the "extraordinary

relationship between the FBI and two organized crime bosses,"

namely Bulger and Flemmi, "may have allowed the FBI informants to

get away with murder." The segment also contained an interview of

Homicide Sergeant Michael Huff of the Tulsa police department, who

said that the Boston FBI had failed to share Halloran's information

with local and federal investigators in Tulsa working on the

Wheeler investigation and that this failure constituted

"obstruction of justice." Bradley also interviewed five detectives

from Oklahoma, Florida, and Connecticut. He stated that these

-24-
detectives believed the Wheeler murder remained unsolved "because

Bulger and Flemmi were protected by the FBI while they were

providing information on the Italian Mafia in New England." One

detective, David Green, said that the FBI gave Bulger and Flemmi a

"license to steal" and that "apparently that license got a little

broader and covered a homicide."

David Wheeler said, by affidavit, that when he accused

the FBI of a cover-up on "60 Minutes," he meant only that he had

previously been unaware of Bulger and Flemmi's status as informants

and that he "felt as though the FBI should have shared this

information with [him] . . . long before this time." He said that

he did not believe at that time that the FBI was responsible in any

way for his father's death and that he had no facts to support such

a belief.

Patricia and Lawrence said by affidavit that they saw

David on "60 Minutes." Pamela and Mark said, also by affidavit,

they did not see David on "60 Minutes" and did not discuss the show

with David or anyone else. Mark said that he was aware that David

appeared on the show, but Pamela said that she could not remember

if she had been aware of that fact at the time. The Wheelers said

in their respective affidavits that tensions had arisen in the

family since Roger's murder and that they communicated very little

among themselves, particularly concerning the painful subject of

the murder.

-25-
 Following the "60 Minutes" interview, David Wheeler also

gave interviews to the Boston press. On May 12, 1998, The Boston

Herald reported that David Wheeler said that he "has always

believed that [former FBI Agent Paul] Rico facilitated his father's

delivery into oblivion" but that he only recently "discovered that

oblivion may well have had names like Whitey and Stevey." The

article noted that David Wheeler said his father thought Rico might

be trying to kill him. The article described Rico as Flemmi's "FBI

mentor" and noted that Rico had recruited Flemmi as an informant.

On July 22, 1998, the Boston Globe interviewed David Wheeler and

described him as "now believ[ing] the FBI has obstructed the

investigation into his father's murder." The article also

summarized the testimony of John Morris at the Salemme hearings in

April 1998, noting that Morris had testified that he told Connolly

that Halloran had implicated Bulger and Flemmi in the Wheeler

murder investigation and that Connolly may have passed this

information on to Bulger and Flemmi. On September 29, 1998, the

Boston Globe reported John Martorano, a member of the Winter Hill

gang, was negotiating a plea agreement with federal prosecutors.

Describing David Wheeler as "the son of one of Martorano's alleged

victims," the article quoted him as stating that he would approve

of a plea agreement for Martorano because "[t]he people he's giving

up are the people who have enjoyed the protection of the FBI for

many years while committing heinous crimes."

-26-
 By affidavit, David Wheeler said that he had "probably"

read these articles, but Patricia, Pamela, and Lawrence said that

they had not, and Mark said that he did not recall whether he read

them.

At around the same time, in the summer of 1998, there was

Tulsa press coverage of developments in the Wheeler murder. On May

17, 1998, the Tulsa World published an article with the headline:

"When G-men, Mobsters Are Friends/FBI Ignored Tip-Off on Tulsa

Murder." The article summarized Morris's testimony in April 1998,

reporting that Morris had admitted to receiving cash and gifts from

Bulger and Flemmi, and to working with other agents to "shield[]

Bulger and Flemmi from prosecution for 20 years because they were

the most prized secret FBI informants in New England history." A

summary of Morris's testimony was again reported in a July 20, 1998

Tulsa World article about the Wheeler murder. The article also

reported that John Martorano had agreed to cooperate with federal

prosecutors and to testify against Bulger and Flemmi in the Wheeler

murder case.

On September 9, 1999, after the Wheelers' May 11, 1999

cut-off date for accrual had passed, Judge Wolf unsealed John

Martorano's plea agreement, in which Martorano admitted that he had

murdered Roger Wheeler. Judge Wolf's September 15, 1999 decision

in Salemme described a series of specific incidents in the early

1980s, before Wheeler's murder, in which FBI agents shielded Bulger

-27-
and Flemmi from investigation. 91 F. Supp. 2d at 202-06. As to

Wheeler's murder, Judge Wolf found that partly because of

irregularities in the FBI's handling of the files relating to

Wheeler's murder, "questions remain regarding the role, if any,

played by Flemmi and Bulger in the Wheeler, Halloran, and Callahan

murders, and the full degree to which the FBI in Boston has, from

1981 until recently, attempted to keep any such role from being

discerned and demonstrated." Id. at 213. He noted that a pattern

of false statements in Flemmi's informant file diverted attention

from Flemmi's crimes and FBI misconduct, that reports containing

Halloran's allegations against Bulger and Flemmi were not indexed

according to usual FBI policy and hence could not be discovered

through a standard search of FBI indices, and that the FBI had

disobeyed discovery orders by its late disclosure of relevant

documents. Id. at 154 n.3.

On December 22, 1999, John Connolly was indicted for

racketeering. A superseding indictment was returned on October 11,

2000. It charged that Connolly had alerted Bulger and Flemmi to

the identity of confidential law enforcement informants, tipped

them off to various law enforcement initiatives, and failed to

report information relating to them that was material to the

investigation of criminal activity in the Boston area. It also

charged that Connolly had obstructed a grand jury investigation

-28-
into Wheeler's murder and tipped Bulger and Flemmi to Halloran's

cooperation.

On September 27, 2000, a federal grand jury returned an

indictment charging Bulger and Flemmi with racketeering; two of the

predicate acts for the racketeering charge were the murder of Roger

Wheeler and the conspiracy to commit that murder.

The Wheelers filed a notice of tort claim with the FBI on

May 11, 2001. After the FBI failed to respond, the Wheelers filed

suit in federal court on March 14, 2002. As in the McIntyre case,

the United States moved to dismiss pursuant to Fed. R. Civ. P.

12(b)(1) on the ground that the Wheelers had failed to present

their administrative claims within two years of accrual, as

required by the FTCA, 28 U.S.C. § 2401(b). On March 31, 2003, the

district court granted the motion, finding that the Wheelers' claim

accrued no later than May 10, 1998, when David Wheeler appeared on

"60 Minutes." The court reasoned that David Wheeler's statements

showed that he knew that Bulger and Flemmi were suspected in his

father's murder and that they may have escaped investigation and

prosecution for the crime with the assistance of the FBI. The

court then went on to say that "[i]t does not matter that not all

the plaintiffs in this case were as informed as David Wheeler"

because they were in possession of sufficient facts to place them

on inquiry notice. Final judgment was entered on motion of the

Wheelers, who then timely appealed.

-29-
 II.

A. The FTCA Accrual Standard

The FTCA provides, in relevant part, that "[a] tort claim

against the United States shall be forever barred unless it is

presented in writing to the appropriate Federal agency within two

years after such claim accrues." 28 U.S.C. § 2401(b). Because the

FTCA is a waiver of sovereign immunity, it is strictly construed.

Skwira v. United States, 344 F.3d 64, 73 (1st Cir. 2003).

Normally, a tort claim accrues at the time of injury.

Gonzalez, 284 F.3d at 288. In United States v. Kubrick, 444 U.S.

111 (1979), the Supreme Court created a "discovery rule" exception

for FTCA claims involving medical malpractice. The Court held that

such claims accrue when a plaintiff knows of both the existence and

the cause of his injury. See id. at 119-202. The Court

determined that accrual does not await the point at which a

plaintiff also knows that the acts inflicting the injury may

constitute medical malpractice. Id. at 122. Distinguishing

between ignorance of the facts (of injury or its cause) and

ignorance of legal rights, the Court reasoned that a claimant, once

armed with knowledge of the fact of injury and the identity of the

parties that caused the injury, is no longer at the mercy of the

government. At that point, claimants can go to others, such as

doctors or lawyers, who will tell them if they are victims of

malpractice. Id. The same is not necessarily true of plaintiffs

-30-
who are ignorant of the facts, particularly when the government may

be in possession or control of the necessary information.

This court has extended this discovery rule to FTCA

claims outside the medical malpractice context. Skwira, 344 F.3d

at 74; Attallah v. United States, 955 F.2d 776, 780 (1st Cir.

1992). Most circuits also apply a discovery rule to wrongful death

actions. See Skwira, 344 F.3d at 74 (collecting cases).

Under the discovery rule, "a claim accrues when the

plaintiff discovers, or in the exercise of reasonable diligence

should have discovered, the factual basis for the cause of action."

Gonzalez, 284 F.3d at 288. The test for whether a plaintiff should

have discovered necessary facts is an objective one. Id. at 288-

89. We look first to whether sufficient facts were available to

provoke a reasonable person in the plaintiff's circumstances to

inquire or investigate further. "A claim does not accrue when a

person has a mere hunch, hint, suspicion, or rumor of a claim, but

such suspicions do give rise to a duty to inquire into the possible

existence of a claim in the exercise of due diligence."

Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)

(citation omitted and emphasis added). Once a duty to inquire is

established, the plaintiff is charged with the knowledge of what he

or she would have uncovered through a reasonably diligent

investigation. Skwira, 344 F.3d at 77. The next question is

whether the plaintiff, if armed with the results of that

-31-
investigation, would know enough to permit a reasonable person to

believe that she had been injured and that there is a causal

connection between the government and her injury. Id. at 78.

Definitive knowledge is not necessary. Id. This inquiry is highly

fact- and case-specific, as are the pertinent questions to ask.

In Attallah, for example, the plaintiffs learned in

September 1982 that the decomposed body of their courier, who had

been transporting almost $700,000 of their money to Puerto Rico,

had been found. 955 F.2d at 778. Over four years later, two

Customs agents were indicted for the robbery and murder of the

courier. Id. The court found that the plaintiffs had filed a

timely administrative claim against the United States because their

claim accrued when the Customs agents were indicted, not when the

courier's body was found. Id. at 780. The court focused on the

fact that aside from the indictment, the only information that the

plaintiffs had available about the whereabouts of their courier was

a Customs Service document showing that their courier had been

processed at the airport customs office and then left the premises.

Id. The court reasoned that if it took the police until 1987 to

discover sufficient information to bring charges against the

Customs agents, the plaintiffs could not be expected to be more

efficient. Id.

Another example is the Skwira case, in which a divided

court, in three opinions, found that the plaintiffs had failed to

-32-
file a timely administrative claim. Skwira, 344 F.3d at 83-86.

There, the claim was that a VA nurse had murdered Edward Skwira, a

patient at the Northampton VA hospital, by injecting him with the

stimulant epinephrine. The facts convincing to the majority on the

issue of accrual were as follows. Skwira was admitted to a

substance abuse treatment facility in Worcester, Massachusetts, in

early February 1996 for the treatment of chronic alcoholism and on

February 15 was transferred to Ward C of the VA hospital, where the

murderess was working. Id. at 69. Despite the absence of any

reason to anticipate heart problems, he suffered a catastrophic

cardiac event later that day and died on February 18, with heart

ailments listed as the immediate cause of death. Id. By the

summer of 1996, articles began appearing in the Northampton local

press describing an ongoing criminal investigation into the high

number of suspicious deaths in Ward C, and the administrator was

quoted as not ruling out foul play. Id. at 68, 80. By September

or October of 1996, investigators contacted the families of some of

the victims, including Skwira's, to voice the government's

"suspicions" about the deaths and obtained permission to exhume and

autopsy the bodies. Id. at 68. Skwira's autopsy showed that the

death certificate had misstated the cause of death. Id. As the

concurring opinion stated, at that point "a reasonable person would

have believed that some kind of negligence or misconduct by

government employees at the hospital might well underlie Edward

-33-
Skwira's death." Id. at 85 (Boudin, C.J., concurring). Had the

plaintiffs sought out independent legal and medical advice at that

point, they should have been able to determine in the two-year

period whether to file an administrative claim. See Skwira, 344

F.3d at 81. The court observed that two other victims' families

did file timely claims, whereas the Skwiras waited three years

after the autopsy report before filing. Id. at 82 n.19.

Skwira is instructive in the ways in which it is both

like and unlike the two cases at bar. The differences are obvious.

Unlike the victims in the cases at bar, Skwira was in the sole

custody and care of a government hospital and, overwhelmingly, the

most likely malefactor was one of a very limited group of

government employees at that hospital. All of the deaths occurred

in the same place with the same small cast of characters. See

United States v. Gilbert, 229 F.3d 15, 18 (1st Cir. 2000) (the

deaths in Ward C of the VA hospital occurred over a six-month

period). There was also certainty the patients were dead, unlike

in McIntyre's situation.

The chief similarity between the two cases at bar and

Skwira is that there was a government investigation into possible

wrongdoing in all three cases. But the circumstances of the

investigation here were different than in Skwira. There, the

government came to the family with its suspicions of wrongdoing at

the hospital and explained the factual basis for those suspicions.

-34-
344 F.3d at 68. The government then helped develop the evidence of

wrongdoing, informing the family that the cause of death reported

was different than that found in Skwira's autopsy. Id. By

contrast, in the two cases at bar, the government did not inform

the plaintiffs of any investigation, appears to have held the facts

revealed in its investigation confidential, and ultimately claimed

to have cleared its agents of wrongdoing before the critical dates

for accrual purposes.5

B. Application to McIntyre's Claims

The claims made by the estate of McIntyre are based on

two interrelated theories of how the FBI caused McIntyre's death:

(1) by leaking his confidential informant status to Bulger and

Flemmi, in violation of a special duty of non-disclosure owed to

him by the government, and (2) by protecting Bulger and Flemmi from

investigation and prosecution, thus enabling and emboldening them

to murder him. As we understand the second theory, it is meant to

buttress the first theory; it is perhaps also meant to serve as an

independent basis for liability.6 The first theory, which we

understand to be the predominant one, arises out of a special duty

5
The plaintiffs here do not argue that the pendency of a
government investigation should automatically toll accrual of their
claims. That argument was rejected in Skwira, which found no
statutory basis for such tolling. See 344 F.3d at 85-86 (Boudin,
C.J., concurring).
6
To the extent that the plaintiff does intend the second
theory as an independent basis for liability, the United States is
free to challenge the availability of that theory on remand.

-35-
that the government has to confidential informants who would be

endangered if their informant status were revealed to others,

particularly those whose activities are the subject of the

informant's disclosures. The FBI Manual requires agents to

exercise constant care to ensure that an informant's identity is

not disclosed, whether intentionally or inadvertently. Salemme, 91

F. Supp. 2d at 150; see also Leonhard v. United States, 633 F.2d

599, 614 (2d Cir. 1980) ("The procurement of testimony against

alleged members of organized crime will normally require

appropriate protection of both the informant and his family.");

Socialist Workers Party v. Attorney Gen. of United States, 458 F.

Supp. 895, 907 (S.D.N.Y. 1978) ("[T]he FBI asserted that it owed

the duty of confidentiality to the informants to protect them from

embarrassment and harm."), vacated on other grounds, In re Attorney

Gen. of United States, 596 F.2d 58 (2d Cir. 1979). Because we find

that the plaintiff could not reasonably be expected to have

discovered the facts supporting the first theory until after May

25, 1998, we find that the case was not properly dismissed and

therefore reverse.

The plaintiff's predominant theory depends on the

following reasoning:

1. McIntyre was cooperating with the government in

its investigation of Bulger and Flemmi, which

imposed a duty on the FBI;

-36-
 2. McIntyre was murdered;

3. Bulger and Flemmi were responsible for the

murder;

4. McIntyre was murdered because Bulger and Flemmi

learned he was informing on them to government

authorities;

5. It was agents of the FBI, Connolly and/or Morris,

who told Bulger and Flemmi that McIntyre was

cooperating with the FBI.

The district court focused on the first three parts of this

sequence only. This did not go far enough. The key missing links

are the fourth and fifth points. We focus on the fifth: whether a

reasonable person in the McIntyres' position, after conducting a

diligent investigation, would have uncovered a sufficient factual

basis to believe, before May 25, 1998, that the FBI was the source

of the leak to Bulger and Flemmi. We conclude that he or she would

not have.

Certainly before May of 1998, the McIntyre family knew of

facts that would permit a reasonable person to believe that Bulger

and Flemmi were responsible for the killing of John McIntyre in

1984 and that Bulger and Flemmi were FBI informants. In our view,

that was not enough to trigger accrual, in light of the nature of

McIntyre's claims.

-37-
 A June 1997 Boston Globe article, described in our review

of the facts, reported that witness statements and other evidence

supported the conclusion that Bulger and Flemmi had McIntyre

kidnapped, tortured him to find out what he had told the

authorities, and then murdered him. Implicit in this report was

that Bulger and Flemmi had somehow found out McIntyre was an

informant. But the article never even mentioned the possibility

that the FBI had disclosed this information to Bulger and Flemmi or

had otherwise given its imprimatur to the murder.

Furthermore, the McIntyres were also faced with the

government's affirmative denials of any wrongdoing in the

relationship between Bulger and Flemmi and FBI agents Morris and

Connolly. The government repeatedly denied wrongdoing in Boston

Globe articles from 1988 through 1995, and one article reported

that an internal FBI investigation had cleared the two agents.

Then, a December 5, 1997 Boston Herald article stated that the

Department of Justice's Office of Professional Responsibility had

investigated and "cleared the FBI handlers [Morris and Connolly] of

[wrongdoing involving] informant gangsters Whitey Bulger and

Stephen Flemmi." Faced with a denial of wrongdoing by the FBI

itself, and lacking any basis to controvert the denial other than

rumor, the McIntyres did not have a reasoned basis to believe that

it was the FBI that had leaked McIntyre's identity as an informant

to Bulger and Flemmi.

-38-
 We turn to the question whether there was later

information between the December 5, 1997 denial of wrongdoing by

the FBI and May 25, 1998 that provided notice of that missing link.

The district court found such an event based on testimony by Agent

Stutman, the former local chief of the DEA, in the Salemme hearings

on April 15, 1998. Because Emily McIntyre attended part of those

hearings, the court attributed to her knowledge of Stutman's

statements that he and agents in his office suspected that the FBI

had compromised their investigation of Bulger and Flemmi but had no

facts to confirm their suspicions. Even assuming that statement

provided a reasoned basis to believe that the FBI had compromised

the DEA's investigation, perhaps by tipping Bulger and Flemmi to

listening devices or warning them of raids, it does not provide a

reasoned basis to believe that the FBI leaked McIntyre's informant

status to Bulger and Flemmi.

The government points to a different event: an April 23,

1998 Boston Herald story reporting that the previous day, Morris

had testified that in 1982, he told Connolly, who in turn told

Bulger and Flemmi, the identity of FBI informant Brian Halloran,

who had informed authorities that Bulger and Flemmi tried to hire

him to kill Roger Wheeler. The government argues that this

information -- that the FBI had leaked to Bulger and Flemmi the

identity of a different informant, as to a different crime, at a

different time -- provided sufficient facts for a reasonable person

-39-
to believe that the same thing had happened to McIntyre. The

government argues that if there was evidence Bulger and Flemmi

killed Halloran because the FBI told them Halloran was an

informant, then a reasonable person could have inferred that Bulger

and Flemmi also killed John McIntyre based on a similar FBI leak.

The government's analogy overreaches both as a matter of logic and

as a matter of fact.

Even assuming arguendo that the Boston Herald article was

enough to lead the McIntyres to suspect that the FBI leaked

McIntyre's identity, and thus to trigger a duty to inquire, a

reasonably diligent investigation would still not have revealed the

necessary factual predicate for their claim before the accrual

date. Most avenues of investigation were cut off by the

possibility of criminal liability for any FBI agents and others

involved. Attempts to gain information through depositions would

likely have been thwarted by invocations of the Fifth Amendment

privilege against self-incrimination. And other information --

such as testimony before the grand jury or facts discovered in the

government investigation -- was hidden behind a veil of secrecy.

In this sense, the McIntyres had even less access to critical

information than most FTCA plaintiffs. See Kubrick, 444 U.S. at

122 (adopting a discovery rule in part because "the facts about

causation may be in the control of the putative defendant,

-40-
unavailable to the plaintiff or at least very difficult to

obtain").

Without more specific information than provided in the

Boston Herald article, a reasonable person could not have had a

basis to claim that the FBI betrayed McIntyre's cooperation to

Bulger and Flemmi. Bulger and Flemmi apparently murdered people

for many reasons. Some of those people were informants. But,

without more, one cannot reasonably deduce from a victim's

informant status (1) that Bulger and Flemmi knew the victim to be

an informant, (2) that, if Bulger and Flemmi knew the victim to be

an informant, they murdered the victim for that reason, and (3)

most importantly, that even if Bulger and Flemmi murdered the

victim for being an informant, the source of their information as

to the victim's informant status was the FBI. One could not

reasonably infer, for purposes of FTCA accrual, from Morris's

testimony about Halloran that the FBI told Bulger and Flemmi about

every informant in their organization or that Bulger and Flemmi

killed every person that they knew to be informing against them,

regardless of the circumstances.

Drawing a direct parallel between the murders of Halloran

and McIntyre is particularly difficult because the situations were

so different. The cases involved different and unrelated

underlying crimes that took place at different times and in

different places: the Wheeler murder was in 1981 in Oklahoma and

-41-
was related to control of a Jai Alai empire, whereas the Valhalla

gun-running operation was in 1984 in Boston for the IRA. Moreover,

Halloran arguably posed a greater threat to Bulger and Flemmi as an

informant than McIntyre did. As Bergeron noted, and as Bulger and

Flemmi might well have been aware, McIntyre was "petrified" of the

two and was unlikely to come forward publicly or, by implication,

to testify. McIntyre was a low-level operative in a gun-running

operation, whereas Halloran was a hit man with the power to

implicate Bulger and Flemmi for murder. Another factual difference

is that there was some indication, as the prosecution itself argued

in Salemme, that McIntyre's cooperation was known to those outside

the government, and thus that Bulger and Flemmi could have

discovered this information from some source other than the FBI.

A January 29, 1995 Boston Globe article reported that "[r]umors

that McIntyre was talking [to the federal government] were rampant"

at the time.

The government's own behavior further undercuts its

argument here that there were sufficient facts before May 25, 1998

to reasonably infer that FBI had betrayed McIntyre. In response to

a defense objection during the cross-examination of Bergeron in the

Salemme hearings on June 4, 1998, the prosecution said that

"there's literally a dozen people" outside the FBI who knew of

McIntyre's cooperation and could have passed the information to

Bulger and Flemmi. The prosecutor argued that Judge Wolf

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"shouldn't infer that there was some leak from the FBI that led to

Mr. McIntyre's disappearance" because the evidence was too

speculative. That, of course, is directly contrary to the position

of the United States as stated in the case at bar: that before May

of 1998, the McIntyres not only should have drawn exactly that

inference but should have acted on it by seeking legal and other

expert advice about filing an FTCA claim.

In the June 1998 Salemme hearings, after the critical

date for accrual purposes had passed, the prosecution also sought

to establish in its questioning of Bergeron that McIntyre had

spoken to authorities about a number of notorious individuals, as

well as the IRA, "[a]ll of whom would have had a motive to make him

disappear." This casts further doubt on whether Bulger or Flemmi

had caused McIntyre's disappearance, making even more remote the

inference that the FBI had leaked McIntyre's identity as an

informant and caused his murder.

This government position in June of 1998 is significant

for several reasons. It shows that there was a real basis to

question whether it was at all reasonable to infer that Connolly

had disclosed McIntyre's dual role to Bulger. We have no reason to

think the federal prosecutor's position in Salemme was taken in bad

faith. The prosecution, which had access to confidential

information and was in possession of far more facts than members of

the public, argued to the court that it could not reasonably make

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such an inference. The McIntyres, who were in a far worse position

to access or evaluate information, should not be required here to

draw such an inference. See Attallah, 955 F.2d at 780 ("The police

did not have sufficient information to bring charges against the

[relevant government officials] until 1987. We believe

[plaintiffs] could not have been more efficient.").

Equally importantly, the prosecutor's position in June of

1998 was yet another expression by the United States in a public

forum that Connolly had not leaked McIntyre's identity and no

wrongdoing had occurred.

Our decision in Skwira hurts rather than helps the

government's position. The United States in Skwira told the

plaintiff that there was cause to investigate suspicious deaths of

patients who were within the sole custody of a VA hospital when

they died and did not deny wrongdoing. 344 F.3d at 80. Here, the

government kept confidential its investigation of claims of

misconduct by Connolly and Morris and ultimately reported in 1997

that it found no wrongdoing. Even Judge Wolf had great difficulty

in prying loose coherent information about McIntyre's death by the

date of his opinion on September 15, 1999. Judge Wolf commented

that the question of whether the FBI disclosed McIntyre's identity

could not "be resolved on the present record" because of the

government's delayed disclosure of documents and its desire to

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avoid bringing to light the circumstances surrounding McIntyre's

death. Salemme, 91 F. Supp. 2d at 215.

We reverse the dismissal of the claims by McIntyre's

estate and remand.

C. Application to the Wheeler Case

The cut-off date for the accrual of the Wheelers' claim,

filed on May 11, 2001, is May 11, 1999. The district court

concluded that their claim accrued on or before May 10, 1998 when

Roger Wheeler appeared on "60 Minutes."

The Wheeler case is based on a fundamentally different

legal theory than the McIntyre case. Unlike the McIntyre case,

which is based on duties arising from the government/informant

relationship, the Wheelers' claim is not based on any direct

relationship between Roger Wheeler and the FBI. The theory of

liability is, as a result, much more indirect than that in the

McIntyre case.

The Wheelers have styled their Mass. Gen. Laws. ch. 229,

§§ 2 and 6 wrongful death claims against the United States as based

on both direct and vicarious liability. They assert that the United

States is vicariously liable for the actions of Connolly, Morris,

and other agents, which provided Bulger and Flemmi with a

"protective shield" against prosecution and investigation that gave

the two criminals the opportunity to commit crimes and emboldened

them to do so, proximately causing Wheeler's murder. The Wheelers

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also assert that the United States is directly liable for failing

to prevent Wheeler's murder, in light of the foreseeable risk that

Bulger and Flemmi would continue to engage in violent criminal

activity. In addition, the Wheelers assert a generalized count

against the United States for intentional infliction of emotional

distress based on Wheeler's murder.

For the Wheelers' claims to accrue, there had to be facts

available that would permit a reasonable person to conclude (1) that

Bulger and Flemmi were instrumental in the murder of Roger Wheeler;

(2) that Bulger and Flemmi were informants for the FBI; and (3) that

the FBI had a special relationship with Bulger and Flemmi that

protected and encouraged them in their criminal activity, including

Wheeler's murder.

The Wheelers clearly had sufficient notice of the first

two sets of facts before the May 11, 1999 accrual date. On April

22, 1998, Morris testified that Bulger and Flemmi were valuable FBI

informants and that he was afraid he had sent Halloran to his death

by telling Connolly that Halloran was alleging that Bulger and

Flemmi had tried to hire him to kill Wheeler. Morris's testimony

on this point received national press attention. It was summarized

in two Tulsa World articles on May 17, 1998 and July 20, 1998 and

in a July 22, 1998 Boston Globe article that quoted David Wheeler.

In addition, a July 20, 1998 Tulsa World article and a September 29,

1998 Boston Globe article, which quoted David Wheeler, both reported

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that John Martorano was negotiating a plea agreement with federal

prosecutors and had implicated Bulger and Flemmi in the Wheeler

murder. In addition, as the district court fairly pointed out,

David Wheeler stated on the May 10, 1998 "60 Minutes" show that

Bulger and Flemmi had caused his father to be murdered, that the two

were FBI informants, and that the FBI was "in bed" with the two.

What proves fatal to the Wheelers' claim is that they were

also on notice of the third set of facts. We sidestep the dispute

about whether David Wheeler meant his statements on "60 Minutes" to

indicate that the FBI had protected Bulger and Flemmi from

prosecution and thus enabled and emboldened them to murder his

father. Other statements on the "60 Minutes" show should have made

clear the special relationship between the FBI and Bulger and

Flemmi. Ed Bradley reported that the "extraordinary relationship"

between the FBI and Bulger and Flemmi "may have allowed [them] to

get away with murder." A detective interviewed for the segment was

even more explicit, describing Bulger and Flemmi as having a

"license" from the FBI to commit crimes that "covered a homicide."

In addition, separate from the "60 Minutes" show, there

was national and local news coverage before the critical date

describing the FBI's shielding of Bulger and Flemmi from

prosecution. At least some of those articles should have caught the

Wheelers' attention, because they specifically referenced Roger

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Wheeler's murder and even, in several instances, quoted David

Wheeler.

Two Tulsa World articles on July 11, 1997 and January 9,

1998, both of which specifically mentioned the Wheeler murder,

reported that Flemmi was claiming in the Salemme proceedings that

the FBI gave him and Bulger immunity from prosecution for their

ongoing criminal activities in exchange for information about

organized crime activities. The July 11 article specifically noted

that Flemmi had executed an affidavit stating that he and Bulger had

been given "free reign from an FBI supervisor to commit any crime"

short of murder. On May 10, 1998, the same night that the "60

Minutes" segment ran, a local Tulsa news station, KOTV, reported

that the FBI had tipped Bulger and Flemmi to Halloran's cooperation

in the Wheeler murder investigation and that Boston FBI agents may

have taken bribes from Bulger and Flemmi.

In the summer of 1998, two Tulsa World articles and one

Boston Globe article that quoted David Wheeler reported that Morris

admitted that the FBI had shielded Bulger and Flemmi from

prosecution for twenty years because they were prized informants.

The Tulsa World article was entitled "When G-men, Mobsters Are

Friends/FBI Ignored Tip-Off on Tulsa Murder." All three articles

specifically mentioned the Wheeler murder. Morris's testimony was

also picked up by the national press, with coverage in May and June

of 1998 from the Associated Press, the Salt Lake Tribune, the

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Charleston Gazette & Daily Mail, the L.A. Times, and the Seattle

Times.

In the summer and fall of 1998, following the "60 Minutes"

segment, David Wheeler himself drew the connection between his

father's murder and the FBI's special relationship with Bulger and

Flemmi in his comments to the Boston press. In a May 12, 1998

article headlined "Dad's execution mystery no more to anxious son,"

the Boston Herald described David Wheeler as saying in an interview

that he "always believed" that former FBI agent Paul Rico

"facilitated" his father's murder at the hands of Bulger and Flemmi.

Wheeler also told the Boston Globe on September 29, 1998 that John

Martorano's cooperation would expose "people who have enjoyed the

protection of the FBI for many years while committing heinous

crimes."

The Oklahoma press and television coverage, the

information revealed on "60 Minutes," and David Wheeler's interviews

with the Boston press are sufficient to establish that David Wheeler

was clearly on notice before the May 11, 1999 critical date.

The issue is whether the other family members, in their

different positions, could reasonably be expected to be aware of

this information. The district court focused on David Wheeler and

attributed his knowledge to all. We disagree with that methodology:

the "knew or reasonably should have known" question must be asked

individually, as to the information available to someone in each

-49-
plaintiff's situation. There is a difference between "knew" and

"should have known." A plaintiff could, at least in theory, have

actual knowledge of critical facts even though he or she would not

otherwise be reasonably expected to know them. As to whether a

plaintiff "reasonably should have known" critical facts, the inquiry

is an objective one: whether a reasonable person similarly situated

to the plaintiff would have known the necessary facts. See Skwira,

344 F.3d at 80 (the "degree of knowledge of injury and cause that

would prompt a reasonable person to take . . . protective steps

will vary with the circumstances of the case"); cf. Rodriguez

Narvaez v. Nazario, 895 F.2d 38, 41 n.5 (1st Cir. 1990) (describing

a similar constructive knowledge test, used to determine accrual of

federal civil rights claims, as whether "a reasonably prudent person

similarly situated" should have known the necessary facts).

Where there are several plaintiffs and they do not live

in the same geographical area, and public notice of the underlying

facts is restricted to certain areas, geography is a factor to be

considered. Geography may be particularly relevant where, as here,

notice is based on local television and press coverage. Similarly,

where, as here, some members of the family have actual notice but

others do not, the issue of how strong the family's ties are and how

frequently they communicate can be relevant. A plaintiff who is

estranged from other more knowledgeable family members is

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differently situated than one who speaks with his or her family

every day.

Despite this leeway, the record here establishes that each

of the Wheelers had available sufficient facts to raise suspicions

provoking a reasonable person to inquire further. See Phillips

Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st

Cir. 1999) (this court "may affirm the judgment for any independent

reason made manifest in the record"). Had the Wheelers inquired

further, the requisite facts were present in the Boston and Oklahoma

television and press coverage to allow a reasonable person to infer

a causal connection between the FBI's actions and Roger Wheeler's

murder.

Patricia Wheeler (Roger's widow) saw the "60 Minutes"

program in May 1998 and some of the Oklahoma press articles; they

were sufficient at least to trigger a duty to inquire before the May

11, 1999 critical date, painful as the subject was to her. The same

is essentially true of Lawrence Wheeler, one of Roger's sons.

Pamela Wheeler Norberg (Roger's only daughter) did not see

the "60 Minutes" segment. She has stated by affidavit that she did

not read any of the press coverage in the record on the painful

subject of her father's murder, and that she is estranged from her

brothers and communicates with them only infrequently. While her

claim presents a closer case, we find that she had a duty to inquire

based on local and national press coverage. "[W]here events receive

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. . . widespread publicity, plaintiffs may be charged with knowledge

of their occurrence." United Klans of Am. v. McGovern, 621 F.2d

152, 154 (5th Cir. 1980) (national news coverage over networks,

wire, and newspapers reported that defendant held press conference

admitting facts supporting the claim); see also Hughes v. Vanderbilt

Univ., 215 F.3d 543, 548 (6th Cir. 2000) (front-page stories in two

local newspapers and a major television network gave rise to

constructive knowledge, even though plaintiff said she did not see

the coverage). Although we recognize that the question of whether

a reasonable person in Pamela's position would have read news

coverage is a fact-intensive inquiry and can sometimes be difficult

to resolve on a motion to dismiss,7 we find that, on the facts of

this case, the record is sufficient to establish notice. Local news

coverage in Tulsa, where Pamela lived, was extensive and mentioned

Roger Wheeler specifically by name, often in the lead paragraph of

the story. Furthermore, nothing in the record shows that Pamela was

estranged from her mother, who did watch the "60 Minutes" show and

read at least some press coverage. A reasonable person in Pamela's

7
See Bibeau v. Pac. Northwest Res. Found., Inc., No. 97-
35825, 1999 U.S. App. LEXIS 38092, at *13 (9th Cir. Aug. 19, 1999)
(additional factfinding necessary to determine if press coverage
would have reasonably put a similarly situated plaintiff on
notice); Orikow v. United States, 682 F. Supp. 77, 85 (D.D.C. 1988)
(more factfinding necessary for accrual of FTCA claim because
"[n]ewspaper articles containing allegations do not necessarily
place citizens on notice when there is no evidence that these
articles were read").

-52-
situation would have been provoked to inquire further; had she done

so, she would have filed a claim earlier.

Mark Wheeler, the youngest son, lives in Texas and did not

see the "60 Minutes" show, although he was aware that his brother

would be appearing on it. He stated by affidavit that he read only

one or two of the articles in the Tulsa press and that he

communicates only infrequently with his family because of tensions

arising from his father's murder. He presents an even closer case

than Pamela because he lived in Texas and the television and press

coverage in the record appeared mostly in either Boston or Tulsa

sources. But we find that he too had a duty to inquire, which if

pursued, would have led him to file his claim earlier. He was aware

of the "60 Minutes" show and, by implication, of national news

coverage of his father's murder. He had access to Tulsa news, as

demonstrated by his reading of at least one or two articles in the

Tulsa newspapers on the subject of his father's death, so if he had

inquired further, he could have learned the necessary facts through

that medium.

The claim of equitable tolling of the two-year limit

fails, to the extent that such a claim is cognizable against the

government at all.8 It is true that the FBI had a long history of

8
Compare Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,
94 (1990) (stating that equitable tolling applies in Title VII
suits against the government on the same terms as it would against
a private employer), with United States v. Beggerly, 524 U.S. 38,
49-50 (1998) (holding that equitable tolling does not apply to
actions under the Quiet Title Act, 28 U.S.C. § 2409a, for reasons

-53-
denying that Bulger and Flemmi were informants, that there was any

"special" relationship between the FBI and the two, and then that

any impropriety resulted from the relationship. For purposes of

equitable tolling, however, the government's denials were superseded

when Morris testified in April 1998 in the Salemme hearings that he

and Connolly shielded Bulger and Flemmi from prosecution and that

they may have been responsible for Halloran's death.

III.

The dismissal of the claim against the United States in

the McIntyre case is reversed and the case is remanded for further

proceedings consistent with this opinion. The dismissal in the

Wheeler case is affirmed.

that could also apply to the FTCA).

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