Rakes v. United States

United States Court of Appeals
For the First Circuit

No. 05-1395

STEPHEN M. RAKES; NICHOLE RAKES; MEREDITH RAKES;
COLBY RAKES; STIPPO'S, INC.; GARY W. CRUICKSHANK, as Trustee in
bankruptcy of Stephen M. Rakes,

Plaintiffs, Appellants,

v.

UNITED STATES,

Defendant, Appellee.

No. 05-1396

JULIE RAKES DAMMERS,

Plaintiff, Appellant,

v.

UNITED STATES,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.
 Douglas S. Brooks, with whom Paul V. Kelly was on brief, for
Stephen M. Rakes et al.
Joseph F. McDowell III, with whom David S.V. Shirley and
McDowell & Osburn, P.A., were on brief, for Julie Rakes Dammers.
Steve Frank, Attorney, Civil Division, U.S. Department of
Justice, with whom Peter D. Keisler, Assistant Attorney General,
Michael J. Sullivan, United States Attorney, Jeffrey S. Bucholtz,
Deputy Assistant Attorney General, and Robert S. Greenspan,
Attorney, Civil Division, were on brief, for the United States.

March 23, 2006
 STAHL, Senior Circuit Judge. This case is the latest in

a series of cases arising out of the unfortunate involvement of FBI

Agent John Connolly with two Boston gangsters, James "Whitey"

Bulger and Stephen "the Rifleman" Flemmi. Among the numerous

crimes perpetrated by Bulger and Flemmi was their successful effort

in 1984 to compel the plaintiffs in this action, Julie Rakes

Dammers and Stephen Rakes, then married, to sell them their newly

opened liquor store. Rakes and Dammers allege, and for purposes of

these appeals we assume, that John Connolly, and therefore the U.S.

government, bear some responsibility for the Rakeses' loss of their

store.

Rakes and Dammers brought suit against the United States

under the Federal Tort Claims Act (FTCA).1 Because the extortion

took place in 1984, and Rakes and Dammers did not file an

administrative claim until May 11, 2001, the FTCA's two-year

statute of limitations would bar this action if the claim had

accrued on the date of the injury. In a long line of cases, we

have held that the start of the FTCA's limitations period may be

delayed during a period in which an injured party has no way of

knowing that he has been injured or that it was the government who

1
Rakes is joined as plaintiff by the trustee of his estate in
bankruptcy, three family members, and a corporate entity. On
appeal, these parties all appear to concede that the court's power
to hear their derivative claims stands or falls with its
jurisdiction over Stephen Rakes' own. For ease of understanding,
we treat the case as if it involved only the principal plaintiffs,
Stephen Rakes and Julie Dammers.

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caused the injury. We have also frequently considered claims that

a statute of limitations, asserted by the government in defense

against a claim, should be tolled on the equities. The question on

appeal is whether, under the discovery rule or under any tolling

principle, the FTCA claim at issue here accrued before or after May

11, 1999. Finding that the claim accrued more than two years

before Rakes and Dammers filed their claims, and that the statute

of limitations was not tolled on grounds of duress or fraudulent

concealment, we affirm the decision of the district court

dismissing the case for lack of subject matter jurisdiction.

I. Background

No factual question has been pressed on appeal, so we

relate the facts as recounted by the district court, relying for

some illustrative background information on earlier cases arising

out of the same connection between the FBI and the Winter Hill

Gang.

A. Prehistory

Founded in the 1960s, the Winter Hill Gang operated as a

criminal syndicate in Massachusetts and beyond until its operations

were disrupted in 1999. Based originally in Somerville,

Massachusetts, the Winter Hill Gang prospered through participation

in a variety of illegal activities, including loan-sharking,

bookmaking, trafficking in arms and narcotics, money laundering,

and outright extortion. Over the years, as its members achieved

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territorial dominance over areas that had been previously

controlled by rival syndicates, among them La Cosa Nostra, which

operated out of Boston's North End, the Winter Hill Gang broadened

its reach to other locales. In particular, the group established

a base of criminal operations in South Boston, and eventually

conducted business from, among other places, a liquor store in that

neighborhood known variously as the South Boston Liquor Mart,

Columbia Wine and Spirits, and Stippo's Liquor Mart. This case

involves the events that led up to the group's acquisition of that

store.

Among the Winter Hill Gang's most notorious and powerful

members were James J. Bulger, known as "Whitey," and Stephen

Flemmi, known as "the Rifleman." Long before they attained

prominence, both of these men became informants for the FBI.

Flemmi was impressed into the service of the bureau in 1965, and

was instrumental in bringing about its well-heralded success at

prosecuting members of La Cosa Nostra, which was the dominant

organized crime presence in Boston prior to the ascendance of the

Winter Hill Gang. (Indeed, the FBI's successful campaign to fight

La Cosa Nostra helped clear away the Winter Hill Gang's competition

and contributed to Bulger and Flemmi becoming the renowned and

powerful gangsters they became.) Bulger was convinced to become an

informant in 1974. He was recruited to help the FBI in its crusade

against La Cosa Nostra by his childhood acquaintance John Connolly,

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who joined the FBI's Boston office as an agent in the Boston

Organized Crime unit in the mid-1970s.

Over the years, John Connolly developed a close working

relationship with Bulger and Flemmi, and took extraordinary steps

to secure their continued availability to the FBI as informants

against La Cosa Nostra. The details of the relationship between

Connolly and Bulger and Flemmi were laid out by Judge Wolf in his

opinion in United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass.

1999), and it is not necessary to this case to rehearse all of the

particulars of their interactions. The crucial point is that on a

number of occasions, Connolly crossed a critical line by offering

sanction to Bulger and Flemmi's activities, and in so doing made

the FBI a partner in some of the Winter Hill Gang's criminal

enterprises. Through Connolly, the FBI offered Bulger and Flemmi

virtual immunity from prosecution for a wide range of racketeering

activities. See id. at 208-15. In this case, the plaintiffs'

claims against the government are based in part on the free reign

that Bulger and Flemmi enjoyed to further the interests of the

Winter Hill Gang.

B. The Liquor Store

In 1983, Stephen Rakes and Julie Rakes Dammers (then

Julie Rakes: the couple divorced in 1990) opened a liquor store in

South Boston, which they named "Stippo's Liquor Mart." In early

1984, Bulger and Flemmi evidently determined that the liquor store

would be an ideal hub for their expanding illegal activities in
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South Boston, and resolved to take it from the Rakeses. Bulger,

Flemmi, and an associate of theirs named Kevin Weeks visited Rakes

at the Rakeses' home in January of 1984.2

The three men "let themselves into" the Rakes residence.

Bulger told Rakes that the three of them had been paid to kill him,

and that although they had decided not to do so, they planned

instead to buy his liquor store. Rakes said that the recently

opened store was not for sale, and Bulger replied that, in that

case, Bulger intended to become the Rakeses' partner in the store.

Rakes explained that he and his wife did not want any partners.

Bulger grew angry at the rebuff, threatened to kill Rakes and

simply take his store, and left the house with his associates in

tow.

The three men did not stay away for long. Later that

evening, they returned to the house and made themselves comfortable

around the kitchen table. They displayed weapons, a gun and a

switchblade, and threatened to kill Rakes. Flemmi picked up Rakes'

one-year-old daughter, stroked her hair, and said that "it would be

2
There is no indication in the record whether the Rakeses and
Bulger were acquainted with one another prior to the events at
issue here or whether there was any particular animosity on
Bulger's part that drove him to select the Rakeses' store. A 1998
Boston Globe article did suggest that "[w]e're talking about folks
who travel in similar orbits here," noting that Stephen "Stippo"
Rakes had a brother and sister who were rounded up in a raid on
Bulger's cocaine distribution ring several years after the 1984
extortion of the liquor store. Joseph Lundbohm, Julie Rakes' uncle
and once a detective with the Boston police, was, according to news
reports in the record, later convicted on corruption charges
related to Bulger's gambling ring.

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a shame for her not to see her father again." Eventually, having

made clear that their threats were in earnest and that the Rakeses'

lives were in danger, Bulger handed Rakes a brown paper bag

containing roughly $65,000, stating that he would pay Rakes $25,000

more in the near future.3 Flemmi stated that the three gangsters

had, with this transfer, become the new owners of the liquor store.

They left the house.

In the next few weeks, the Rakeses fended off repeated

attempts by Bulger and his men to force them to sign title to the

liquor store over to Bulger. In fear, the family fled to Florida

for a short time to avoid the gang members. After returning, they

remained determined to keep their new store.

Julie Dammers' uncle, Joseph Lundbohm, was then a

detective with the Boston Police Department. The Rakeses turned to

Lundbohm for advice and assistance in dealing with Bulger and his

crew of thugs. Lundbohm sought and received the Rakeses'

permission to contact a friend on the FBI's Organized Crime squad.

That friend turned out, to the Rakeses' misfortune, to be Agent

John Connolly. Connolly expressed hesitation about assisting the

Rakeses. He told Lundbohm that the FBI might be interested in

helping the couple if they agreed to wear recording devices during

conversations with Bulger and the others, but that if they did not

3
This promise eventually proved worthless. When Rakes later
requested that Bulger at least pay the remaining $25,000, Bulger
refused.
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want to wear the wires, they would not be useful to the FBI and the

FBI was therefore unlikely to do anything about the extortion.

Lundbohm told Connolly that he would advise the Rakeses

not to wear the wires and that in any event they were unlikely to

want to do so, given the obvious danger involved. Connolly said

that he did not feel there was much that he or the FBI could do to

help the Rakeses. Lundbohm returned to the Rakeses to report the

dispiriting news.

Internal FBI regulations in effect at the time

purportedly required that Connolly make a record of the contact and

of the information provided to him by Lundbohm, and apprise his

supervisor of the conversation. Connolly, however, made no record

of the conversation, and told no one that Lundbohm had come to talk

to him -- no one, that is, except for Whitey Bulger.

Connolly evidently reported to Bulger that Lundbohm had

come to see him on the Rakeses' behalf. Bulger visited Rakes again

and told him that he had better tell Lundbohm to "back off." Out

of options, and running low on friends in law enforcement (in fact,

the Rakeses believed at the time that it was Lundbohm himself who

had told Bulger that the Rakeses were seeking help from the

authorities), the Rakeses finally acceded to Bulger's demands and

signed over title to the property.

C. Subsequent Events & Newspaper Coverage

Because our disposition of the case turns in part on

when, and the degree to which, certain facts were publicized, we
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recount the subsequent events primarily as related in the local

news media.

1. 1988 to 1990: Speculation

Newspaper coverage of the relationship between Connolly

and Bulger and Flemmi began no later than September 20, 1988, when

the Boston Globe reported that the FBI "has for years had a special

relationship with Bulger that has divided law enforcement bitterly

and poisoned relations among many investigators." The Globe

Spotlight Team, The Bulger Mystique: Law Enforcement Officials

Lament about an Elusive Foe: Where Was Whitey?, Boston Globe, Sept.

20, 1988, at 18. The Globe's speculations in that initial article

and subsequent ones were, however, vehemently denied by the FBI.

See, e.g., id. at 19 (quoting FBI's denial that the FBI gave any

"special treatment" to Bulger); Dick Lehr, Finnerty Is Attorney for

FBI Agent, Boston Globe, Mar. 24, 1989, at 16 (rejecting "the

notion that Bulger has had relations with the bureau that have left

him free of its scrutiny"); Dick Lehr & Kevin Cullen, Liquor

Purchase Fuels Friction over FBI-Whitey Bulger Tie, Boston Globe,

Nov. 11, 1990, at 44-45 (noting FBI's strong denials of any

impropriety). After this spate of reporting from 1988 to 1990, the

papers became relatively quiet on the issue for a several years.

2. 1995-1998: The Flemmi Trial

In 1995, Flemmi and a number of other members of both the

Winter Hill Gang and La Cosa Nostra, including Francis P. "Cadillac

Frank" Salemme, were arrested on federal racketeering charges
-9-
following the obtaining of a set of indictments by the U.S.

Attorney's office. Bulger was named in the indictments as well,

but escaped before being arrested and fled the Boston area. At

that time, the Globe reported that "[n]o one has ever shown the FBI

to be an active protector of Bulger -- indeed, such a view is

widely condemned as grossly unfair." Dick Lehr, Bulger's Flight

Spares FBI Burden of Ties Being Aired, Insiders Say, Boston Globe,

Mar. 5, 1995, at 24. It nevertheless suggested that Bulger's

disappearance may have been convenient for the FBI, which might not

have wanted a spotlight cast on its relationship with Bulger. Id.

Reference to the FBI's light-handed treatment of Bulger also

appeared in an August 1995 article in the Boston Herald, which

reported that "federal officials repeatedly have ignored

allegations Bulger has been coddled as a valuable stool pigeon."

Joe Heaney, Do Irish Eyes Smile on Whitey?, Boston Herald, Aug. 13,

1995, at 14.

Subsequent to these articles came another period of

relative quiet: the prosecutions of Flemmi, Salemme and the others

crept forward, and significant news bearing on the instant case did

not emerge until 1997. Then, in a front-page article that ran on

June 26, 1997, the Globe reported on the "explosive" testimony of

Stephen Flemmi in connection with the prosecutions under the 1995

indictments. See Patricia Nealon, Flemmi Says He, Bulger Got FBI's

OK on Crimes, Boston Globe, June 26, 1997, at A1. The article led

with the following statement: "Gangster turned informant Stephen J.
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'The Rifleman' Flemmi asserted yesterday that an FBI contact

assured him and his criminal partner, James J. 'Whitey' Bulger,

they could continue to commit crimes –- short of murder –- without

fear of prosecution." Just below, it continued in greater detail:

Flemmi, who ran the Winter Hill Gang with
Bulger, described secret meetings at the
Lexington home of FBI agent John Morris, who
ran the bureau's organized crime squad here.
At the meetings, Flemmi says, he and Bulger
were all but given carte blanche to break the
law.

"Mr. Morris told Mr. Bulger and I that we
could do anything we wanted so long as we
didn't 'clip anyone,'" Flemmi's affidavit
said.

Id.

That same article noted the FBI's slightly inconsistent

responses to the accusation by Flemmi. On the one hand, Barry W.

Mawn, then head of the Boston office of the FBI, acknowledged that

the FBI would follow procedure and investigate the claim. Id. On

the other, Paul E. Coffey, then head of the Justice Department's

Organized Crime and Racketeering Section, suggested that there was

nothing for an investigation to find, reportedly asserting that

"Flemmi and Bulger were warned periodically that they were not

authorized to commit any crimes without specific permission --

something Coffey said they never received." Id. In December 1997,

an article buried deep in the Boston Herald reported that Connolly

and Morris had been cleared of any wrongdoing in an internal

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Justice Department probe. See Ralph Ranalli, Justice Dept. Clears

Ex-FBI Agents in Mob Case, Boston Herald, Dec. 5, 1997, at 24.

On January 7, 1998, the Herald reported in an inside

story that "Winter Hill wiseguy and FBI informant Stephen 'The

Rifleman' Flemmi said he was rewarded for his work for the agency

with a free pass on murder, attempted murder and fugitive charges

in the mid-1970s, defense lawyers alleged yesterday." Ralph

Ranalli, Mobster: I Had a License to Kill; Flemmi Says FBI Knew He

Was Murderer, Boston Herald, Jan. 7, 1998, at 6. A metro section

piece in the Boston Globe on January 9, 1998 detailed the FBI's

reluctance to assist the federal Drug Enforcement Administration

(DEA) in an investigation of cocaine trafficking by Bulger and

Flemmi. Patricia Nealon, FBI Loyalty to Mob Duo is Detailed; DEA,

Others Kept in Dark About Bulger, Flemmi Ties, Boston Globe, Jan.

9, 1998, at B1. Five days later, another article tucked inside in

the Herald noted again that Flemmi had asserted that the FBI gave

him immunity in exchange for useful information. See David Weber,

Flemmi's Lawyer Contends Fed Let His Crimes Slide, Boston Herald,

Jan. 14, 1998, at 10.

3. 1998: Stephen Rakes' Perjury Trial

In 1998, Stephen Rakes was tried for perjury for falsely

claiming in earlier grand jury testimony that he had voluntarily

signed his family's store over to Bulger.4 A front-page article in

4
Stephen Rakes was summoned to appear before federal grand
juries in 1991 and 1995. On both occasions, members of the Winter
Hill Gang contacted Rakes before his appearance, and cautioned him
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the Globe on May 28, 1998, ran during the trial and recounted the

Rakeses' story. See Shelley Murphy, Mobster's Takeover of Store

Recounted, Boston Globe, May 28, 1998, at A1. The article made

reference to the ironic fact that the FBI agent to whom the Rakeses

turned for help back in 1984 was Bulger and Flemmi's handler, and

noted that Connolly was not able to recall whether he had reported

the contact with Lundbohm to his supervisor, but made no direct

suggestion of FBI impropriety. See id. In testimony to the grand

jury before trial and again at the trial itself, Julie Dammers

addressed the facts surrounding the 1984 extortion of the liquor

store and the later investigation into Stephen Rakes' perjury. On

May 29, 1998, the fourth day of Rakes' trial, Rakes' defense

counsel asked Dammers about one of her interactions with an

Internal Revenue Service agent named David Lazarus, who was

investigating the perjury. The colloquy ran as follows:

Attorney: Did Mr. Lazarus say anything about
Whitey Bulger and Stephen Flemmi during the
conversation?

Dammers: Yes. I said that they knew
everything because Whitey Bulger was under
their protective custody, and he -- and I
said, "And that was your office," and he said
"No, it wasn't his office."

that he should testify that his decision to transfer the liquor
store to Bulger in 1984 was voluntarily taken, and on both
occasions he ultimately so testified. Rakes' false statements
before the grand jury evidently frustrated federal officials who
would have used the testimony to prosecute Bulger and others.
Rakes was indicted, tried, and convicted of perjury on the basis of
his false grand jury testimony.
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 Attorney: Did he explain to you when he said
"No, it wasn't his office," who did he blame?

Dammers: The FBI.5

(emphasis added).

Two days later, the Globe ran a story about Dammers'

testimony at the trial of her former husband, noting that Dammers

"said she argued with IRS special agent David Lazarus, who is

assigned to the case, over how the government had protected Bulger

while prosecuting Stephen Rakes." Shelley Murphy, Woman Says

Bulger Shielded, but Husband Charged, Boston Globe, May 30, 1998,

at B6. A story in the next day's Herald reported that Julie

Dammers had in her testimony characterized Bulger as being in the

government's "protective custody." David Weber, Merchant's Ex-wife

Details Mob Buyout, Boston Herald, May 31, 1998, at 5.

A June 17, 1998 article reported Lundbohm's testimony

that, after Lundbohm went to speak to Connolly about the liquor

store extortion, "Connolly allegedly tipped off Bulger." Dick

Lehr, Ex-detective's Testimony OK'd in Perjury Trial, Boston

Globe, June 17, 1998, at F12. See also David Weber, Whitey Told

Store Owner to 'Back Off' from Authorities, Boston Herald, June 17,

1998, at 32 (reporting that, in testimony, Lundbohm said he

believed that "Bulger had some knowledge of the conversation with

5
On objection by the prosecuting attorney, the trial judge
ordered the answer to the second question stricken, and the jury in
the case therefore did not consider it. It nevertheless is a part
of the record for purposes of these appeals.

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Mr. Connolly"). A Globe article on June 25, 1998 reported on

Rakes' perjury conviction and noted that:

With a prison term looming, the MBTA worker
[Rakes] may face a dimmer future than either
Bulger or Flemmi, both of whom worked as FBI
informants for years. Flemmi is arguing in
federal court that the FBI granted him
immunity from prosecution, while Bulger is a
fugitive.

Marcella Bombardieri, Jury Convicts Man of Perjury for Denying

Gangster's Coercion, Boston Globe, June 25, 1998, at B4.

On Wednesday, July 22, 1998, the Boston Globe ran a major

cover story detailing the many instances in which the FBI had

apparently looked the other way while Bulger and Flemmi committed

crimes. See Shelley Murphy & The Globe Spotlight Team, Cases

Disappear as FBI Looks Away, Boston Globe, July 22, 1998, at A1.

The piece recounted Bulger's 1976 extortion of a Dedham

restauranteur, an incident on which the article suggested the FBI

could easily have built a case against Bulger. The FBI chose not

to build such a case, however, which, the article said, sent "a

powerful message to two of the region's more ruthless organized

crime figures: As long as you're with us, we won't bother you."

Id. This meant that "[d]espite solid evidence indicating Bulger

and Flemmi were involved in murders, shakedowns, and drug dealing,

the FBI looked the other way throughout the 1970s and 1980s." Id.

The article continued, "It made no difference who the victims were,

fellow wise guys or innocent people. . . . In some cases, the

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bureau even helped the gangsters by leaking information to them

about ongoing investigations." Id. The Globe went on to list four

"potential cases that went nowhere." This description appeared on

that list:

In 1984, a Boston police detective told
Connolly that Bulger and Flemmi were trying to
seize a liquor store owned by the detective's
relatives with a "can't refuse" offer. But
Connolly did not report the incident to
superiors and, within days, Bulger sent word
to the victims that he knew they had
complained to the FBI and warned them to "back
off."

Id.

The article went on to note Connolly's denial of any

wrongdoing, but nevertheless suggested some impropriety, stating

that "the record now shows that the deal -- protection for

information -- left the bureau shortchanged, co-opted, and

compromised." Id. In a more extended discussion of the liquor

store extortion, the article asserted that "Connolly denied leaking

the information" that the Rakeses were seeking police protection

against Bulger, but noted that "it appears that Connolly made a

unilateral decision to neither investigate the extortion nor pass

it along to a supervisor." Id.

In August 1998, at roughly the same time that media

coverage of all of these events came to an end, Dammers left the

Boston area and moved to Gansevoort, New York. The record apprises

us of only two articles appearing after the date of her move. In

late September 1998, a Boston Herald article, albeit one buried
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deep in the paper, noted that federal prosecutors had elicited

testimony from Lundbohm "as part of a continuing effort to paint

Connolly as a 'rogue' agent who overstepped his authority to aide

[sic] Bulger and Flemmi," and which reported that "Connolly is the

subject of a grand jury probe in Hartford investigating FBI

misconduct." Ralph Ranalli, Supervisor: Promises to Informants

Tripped FBI, Boston Herald, Sept. 30, 1998, at 14. A Globe article

on September 30, 1998 reiterated in brief the story of Rakes'

perjury trial and Flemmi's allegations that Connolly had given him

a free pass to commit crimes, and reported Lundbohm's recent

denials that he was aware of any connection between Connolly and

Bulger when he turned to Connolly on the Rakeses' behalf.

After September 1998, there began a year-long period

during which the record reflects no reporting on the relationship

between the FBI and the Winter Hill Gang. So far as the record

shows, new news did not emerge until September of 1999, with the

publication of Judge Wolf's opinion in Salemme and the media

coverage of that event. Because in this case we are concerned only

with what the plaintiffs knew or should have known before May 11,

1999, we need not discuss this later coverage.

D. Procedural History

On May 11, 2001, Julie Dammers and Stephen Rakes each

filed with the FBI the administrative notice and claim that the

FTCA requires be filed with an agency if a potential plaintiff's

legal claim is to be preserved. See 28 U.S.C. § 2401(b); 28 C.F.R.
-17-
§ 14.2. They received no reply after six months, at which point

they were entitled to bring suit by filing a complaint in a federal

district court. Each did so on May 8, 2002, in complaints to the

U.S. District Court for the District of Massachusetts. The cases

were assigned to Judge Young, who consolidated them, and discovery

commenced. A long and hard-fought discovery battle ensued, and

multiple delays were granted at the government's request, relating

both to the burden of discovery and to the government's interest in

withholding certain documents during the course of the trial of

Stephen Flemmi, which at times ran concurrently with the

proceedings below. As a result, the district court did not finally

resolve the case until January 3, 2005. See Rakes v. United

States, 352 F. Supp. 2d 47 (D. Mass. 2005).

The district court disposed of the case on the

government's motion to dismiss for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1). The FTCA waives the

government's sovereign immunity with respect to certain tort

claims, see 28 U.S.C. § 1346, but imposes a two-year statute of

limitations, see id. § 2401(b). The government moved to dismiss,

arguing that this statutory period had run. The plaintiffs

countered that they had had no way of learning of the facts

underlying their claim until the opinion in Salemme was handed

down, and that the limitations period had therefore started to run

no earlier than September 1999.

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 The district court noted that, because the plaintiffs'

claims were initially filed on May 11, 2001, the relevant question

was whether the claims had accrued before or after May 11, 1999,

the date two years prior to the filing date. The court found that,

regardless of whether accrual of the claims had been delayed for

some period after the injury, on the facts of the case the claims

had accrued before May 11, 1999, and thus were barred. The

district court also rejected the plaintiffs' arguments that the

statute of limitations had not run on grounds of duress suffered by

the plaintiffs or fraudulent concealment on the part of the FBI.

Finding that the claims were all time-barred and that the court

therefore had no jurisdiction over the suit, the district court

dismissed. Rakes and Dammers each timely appealed.

On appeal, Stephen Rakes pursues only an argument that

the district court erred in its application of the discovery rule,

urging us to hold that, under the circumstances, his claims did not

accrue until after May 11, 1999, the date two years prior to the

plaintiffs' original administrative filing. Dammers forwards a

similar argument, and also appeals from the district court's

failure to find the statute of limitations tolled by reason of

duress and fraudulent concealment and misrepresentation. We

discuss each question in turn, and, finding no error, affirm the

district court's dismissal of the case.

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 II. Discovery Rule under the FTCA

A. Legal Framework

Courts have no jurisdiction over claims against the

federal government, except where the government has expressly

waived its immunity. See United States v. Kubrick, 444 U.S. 111,

117 (1979). The FTCA is such a waiver. Id. In particular, the

FTCA permits individuals to sue the government "for injury or loss

of property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment." 28 U.S.C. §

1346(b). The waiver effected by the FTCA is, however, closely

circumscribed by the terms of the statute.

One of the restrictions the FTCA provides is a strict

time limit for bringing suit. A provision of the statute, codified

at 28 U.S.C. § 2401(b), 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." Claims not brought within the

two-year period fall outside of the courts' subject matter

jurisdiction and cannot be heard.6

6
We have often noted that the FTCA's statute of limitations
provision must be "strictly construed." See, e.g., McIntyre v.
United States, 367 F.3d 38, 51 (1st Cir. 2004); Skwira v. United
States, 344 F.3d 64, 73 (1st Cir. 2003). We have derived this
principle from the Supreme Court's warning in Kubrick that "in
construing the statute of limitations, which is a condition of [the
FTCA's waiver of sovereign immunity], we should not take it upon
ourselves to extend the waiver beyond that which Congress
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 At issue in this case is the applicability of what has

come to be called the "discovery rule," which governs claim accrual

under the FTCA under circumstances where the fact or cause of an

injury is unknown to (and perhaps unknowable by) a plaintiff for

some time after the injury occurs, and which will sometimes dictate

that a claim accrues well after the time of the injury. The

Supreme Court first recognized a discovery rule in Kubrick, in the

context of a claim for medical malpractice. This circuit has

applied the discovery rule outside of the medical malpractice

context, making of it a general rule.

Under this general rule, an action under the FTCA

"accrues when the injured party knew or, in the exercise of

reasonable diligence, should have known the factual basis for the

cause of action." Attallah v. United States, 955 F.2d 776, 780

(1st Cir. 1992) (citing Kubrick, 444 U.S. at 121-25; Maggio v.

Gerard Freezer & Ice Co., 824 F.2d 123, 130 (1st Cir. 1987)).7 The

intended." 444 U.S. at 117-18. While we must exercise care in
deciding cases under the limitations provision at issue here, we
must also be careful not to be more stinting in the interpretation
of the provision than its language requires. This is because it is
equally true that, just as the courts should not construe a waiver
of sovereign immunity more broadly than Congress intended,
"[n]either, however, should we assume the authority to narrow the
waiver that Congress intended." Id. at 118 (citing Indian Towing
Co. v. United States, 350 U.S. 61 (1955)); see also Irwin v. Dep't
of Veterans Affairs, 498 U.S. 89, 94 (1990) ("[W]e must be careful
not to 'assume the authority to narrow the waiver that Congress
intended,' or construe the waiver 'unduly restrictively.'"
(quoting Bowen v. New York, 476 U.S. 467, 479 (1986))).
7
There was a time when this circuit recognized a lex loci rule
for the determination of the time of accrual for a cause of action
under the FTCA. See Hau v. United States, 575 F.2d 1000, 1002 (1st
-21-
requirement that the injured party know, either actually or

constructively, the "factual basis for the cause of action" means

that a claim does not accrue under the FTCA until a person in the

plaintiff's position, that is, one who knew or should have known as

much as the plaintiff knew or should have known, would believe that

he had been injured and would know "sufficient facts to permit a

reasonable person to believe that there is a causal connection

between the government and [the] injury." Skwira, 344 F.3d at 78.8

Here, we are not asked to decide whether the plaintiffs

actually knew sufficient information to trigger accrual of their

claims. Instead, we are asked to decide this appeal on the basis

of the objective component of the test. Cases such as this one

Cir. 1978); Tessier v. United States, 269 F.2d 305, 309 (1st Cir.
1959). As District Judge Woodlock wisely noted in a careful
opinion some years ago, see McLellan Highway Corp. v. United
States, 95 F. Supp. 2d 1, 11-13 (D. Mass. 2000), that time has
passed. Since Kubrick, we have extended and uniformly applied the
federal rule of accrual that case provided, with only the barest
mention of the possibility that state law governed accrual, see
Vega-Velez v. United States, 800 F.2d 288, 289 (1st Cir. 1986).
This is enough to convince us that Kubrick changed our approach to
accrual under the FTCA, even if this change passed without comment
in our cases. Indeed, we think this panel is not empowered to
revisit an approach heralded by Kubrick and applied so consistently
in the cases since then. See, e.g., Callahan v. United States, 426
F.3d 444 (1st Cir. 2005); Cascone v. United States, 370 F.3d 95
(1st Cir. 2004); McIntyre, 367 F.3d 38; Skwira, 344 F.3d 64;
Gonzales v. United States, 284 F.3d 281 (1st Cir. 2002); Attallah,
955 F.2d 776. In all of these cases, we applied the discovery rule
without reference to state law, and we are bound by their approach.
8
We note that a claim can accrue before the plaintiff knows
that the injury was the result of a breach of a legal duty; it is
for this reason that we speak of the plaintiff's knowledge of the
"factual basis" and not of his knowledge of the legal sufficiency
of the claim. Kubrick, 444 U.S. at 122.

-22-
turn on the question of what information a plaintiff "should have

known." We start the analysis by asking what generally available

information about the relevant facts the plaintiffs should be

charged with knowing. We then ask whether a plaintiff who knew at

least that much would have made a further investigation, and what

such an investigation would likely have revealed.

The latter part of this inquiry is fairly

straightforward. The more troublesome portion is the first step,

at which we ask with what generally available information the

plaintiff should be charged. We have touched on this difficult

question in the past, in cases in which we described the question

as, for example, "whether sufficient facts were available to

provoke a reasonable person in the plaintiff's circumstances to

inquire or investigate further." McIntyre, 367 F.3d at 52. But

the mere "availab[ility]" of facts is not a full description of the

standard we have applied. See, e.g., Cascone, 370 F.3d 95

(information in newspapers would not be imputed to plaintiff in

part because, though available, newspapers circulated to small

percentage of local population).

At some point, facts achieve a local notoriety great

enough that the only practicable course is to attribute knowledge

of them to people in a position to become familiar with them. The

limitations provision in the FTCA is, like most statutes of

limitations, in part a rule of repose: it permits the United States

to rest easy after a period of time, knowing suits for long-past
-23-
wrongs are barred. See Kubrick, 444 U.S. at 117. In furtherance

of this policy of repose, we charge plaintiffs with the knowledge

the government reasonably ought to have expected them to have. If

the government, aware of the depth of the information available and

of the breadth of that information's circulation, would reasonably

have expected someone in a potential plaintiff's position to begin

his inquiry, then the duty to inquire is triggered.

B. A Threshold Question: Effect of Multiple Theories

In this case, Rakes and Dammers ask us to conduct this

accrual analysis three times, each with respect to a different

proposed explanation of the way in which the government caused

their injury. The plaintiffs' first theory is that the government

caused their injury by emboldening Bulger and Flemmi, who relied on

Connolly's protection and his assurances of immunity and who would

not have taken the store had it not been for those assurances. The

second is that the government caused the injury when Connolly told

Bulger that the Rakeses had gone to the police looking for

protection.9 The third is that they were injured through the

negligent failure of Connolly's superiors to supervise him

properly.10 The plaintiffs postulate that claims under each of

9
It is highly unlikely that this theory could, standing alone,
justify relief: Bulger and Flemmi had manifested an intent to wrest
ownership of the store from the Rakeses well before the couple
sought help from Lundbohm.
10
To the extent this claim arises from an allegation that the
FBI failed to enforce certain of its internal guidelines in the
supervision of Connolly, it is also of doubtful merit. Whether a
violation of the FBI's internal guidelines would give rise to a
-24-
these three theories might accrue separately, and that therefore,

while a claim under one theory might be time-barred, a claim under

another would still be viable.

We have cases that come out on both sides of this

question. Our recent decision in Callahan held that the claim at

issue in that case accrued when information vital to any theory of

liability first emerged. See 426 F.3d at 452. Our earlier

decision in McIntyre took a different approach, permitting a

plaintiff to sue on the basis of information recently acquired,

without determining whether the plaintiff would have had enough

information to bring a claim for the same injury, under a different

theory, at an earlier point in time. See 367 F.3d at 54.

Neither McIntyre nor Callahan should be viewed as setting

forth a flat rule, or even a generally applicable rule subject to

an easily stated exception. Whether a court will need to make

separate calculations as to timeliness for different theories of

injury pertaining to a single set of facts, or can simply rely on

the accrual date of the earliest-accruing theory, depends very much

on the circumstances of the case. In some instances, it will make

sense to look at the injury as a single episode, while in others

separate determinations of accrual dates will have to be made.

cause of action that individuals in the position of the plaintiffs
here could assert would require some analysis, but it is far from
obvious that a suit could be brought against the government on
these grounds alone. See generally Alexander v. Sandoval, 532 U.S.
275, 289 (2001) (questioning whether "authorizing portion of
[statute permitting agency to issue regulations] reveals [a]
congressional intent to create a private right of action").
-25-
 In this case we need not make a precise choice as to

whether the three theories (only two of which are advanced by Rakes

on appeal) should be analyzed separately from one another. On the

present facts, once the plaintiffs had sufficient knowledge (actual

or constructive) to trigger accrual of the emboldening theory, they

also had sufficient knowledge to trigger accrual of the wrongful

disclosure and negligent supervision theories.

Starting with the wrongful disclosure theory, Rakes and

Dammers knew from the day Bulger told Rakes to have Lundbohm "back

off" that someone had tipped Bulger off about their attempt to get

help from the authorities. Even if a reasonable person would not

at that time have suspected FBI agent Connolly -- Rakes and Dammers

profess to have suspected Lundbohm initially -- a diligent

plaintiff would have had grounds to suspect the FBI as an

alternative source for the leak at the latest by the time such

plaintiff also had reasonable grounds to suspect the FBI's wrongful

emboldening of Bulger and Flemmi. That is, as soon as the

plaintiffs should have suspected a corrupt relationship between the

FBI and Bulger and Flemmi, they should also have suspected that the

FBI could have been the source of the leak that they knew years

earlier had occurred.11

11
Although Rakes and Dammers argue that this case is identical
to the first of the consolidated appeals considered in McIntyre,
367 F.3d 38, it differs in that it was clear from the outset that
Bulger knew that Rakes and Dammers had sought help from Lundbohm,
and Connolly was one of only two (or at most three) possible
sources for that information. It is the high probability that an
agent of the government was responsible for the leak, coupled with
-26-
 The plaintiffs' third theory is that they were injured by

the negligent failure of Connolly's superiors at the FBI to

properly supervise him. This claim builds directly off of the

claims concerning Connolly's own malfeasance; that is, the

supervision was negligent, if at all, precisely because it failed

to prevent Connolly's wrongful actions, including his emboldening

of Bulger and Flemmi (which was accomplished in part by his alleged

failure to report complaints like the Rakeses' to his superiors).

A negligent supervision theory of recovery is the sort

that is normally considered, and often pursued, in any case where

the primary injury was caused by a rogue lower-level employee.

Certainly once the plaintiffs in this case suspected (or reasonably

should have suspected) Connolly's own pervasive wrongdoing, they

should also have suspected the reasonable possibility that he may

have been enabled in this wrongdoing by poor, and even negligent,

supervision by his superiors. Thus, this theory accrued at the

same time as the two theories focused on Connolly's own alleged

wrongful actions.

C. Application of Accrual Analysis

Connolly's corrupt relationship with the FBI received

widespread publicity prior to May 11, 1999, the date two years

before the date on which the plaintiffs filed their claims. On the

the small set of possible government sources, that sets this case
apart from McIntyre, where the plaintiffs could only speculate that
there had even been a leak from an official source, to say nothing
of the FBI specifically. See id. at 56-57.
-27-
basis of this publicity, we have no difficulty in concluding that

Rakes and Dammers should have filed their administrative claims

earlier, and that by not doing so they lost the opportunity to

present those claims, which are now "forever barred." The district

court correctly concluded that the discovery rule did not

sufficiently delay accrual of the claims in this case.

We begin, as we have just explained, by asking what

generally available information the government reasonably ought to

have expected the plaintiffs here to have had. The trail of

newspaper articles that began in June 1997 and continued through

September 1998, offering coverage of the events surrounding Stephen

Flemmi's testimony in the Salemme case, is the foundation of our

conclusion. That trail begins with the revelation that Flemmi

testified that "he and Bulger were all but given carte blanche to

break the law." Nealon, Boston Globe, June 26, 1997, at A1. The

Herald followed up in January 1998 with an article noting Flemmi's

more shocking assertion that he had been "rewarded for his work for

the agency with a free pass on murder . . . ." Ranalli, Boston

Herald, Jan. 7, 1998, at 6. The Globe then reported that the FBI

had been reluctant to assist another law enforcement agency in its

attempts to go after Bulger and Flemmi on drug trafficking charges.

See Nealon, Boston Globe, Jan. 9, 1998, at B1. Most vitally, the

Globe ran a comprehensive article in July 1998, which accused the

FBI, and Connolly in particular, of looking the other way while

Bulger and Flemmi committed crimes. See Murphy et al., Boston
-28-
Globe, July 22, 1998, at A1. That front-page article specifically

discussed the extortion of the liquor store as one of the crimes

the FBI had known of but declined to do anything about. See id.

We do not know whether Stephen Rakes and Julie Dammers

read any of these articles, and indeed they claim that they did

not. The question here, however, is whether the government was

entitled to expect them either to have read them or to otherwise

have become aware of their general purport. While the government

was not entitled to expect that Rakes and Dammers had read every

article or knew, initially, of the details related in every piece

published in any locally available paper, see Cascone, 370 F.3d 95,

we conclude that the government was entitled to expect that,

through the channels of communication that run among people

connected through ties of neighborhood, community, friendship, and

family, the general purport of these important and widely

circulated articles would become known to people in Rakes and

Dammers' positions. This means that Rakes and Dammers should have

had at least some notion that strong accusations of wrongdoing by

Connolly had been made by Flemmi and others.

During the same period, a number of articles also

appeared in the papers detailing Julie Rakes and Joseph Lundbohm's

testimony during Rakes' perjury trial. There is, of course, every

chance that all of the information that came out during Rakes'

trial was actually known to Stephen Rakes, and a good chance that

all or some of it was known to Julie Dammers. In any event, the
-29-
proceedings in that trial and media coverage of it are chargeable

to both parties: the government was entitled to expect both Rakes,

the subject of the prosecution, and Dammers, a key witness, to be

generally aware of the goings-on at trial. Among the pieces of

information of which the government could reasonably have expected

both parties to learn were Lundbohm's apparent speculation that it

was Connolly who had tipped off Bulger to the fact that the Rakeses

were seeking police assistance, and Julie Dammers' own statement

that Bulger had been under the government's protection.

For these reasons, both parties are charged with the

knowledge that prior to September 1998, there had been much

speculation that Connolly had sheltered Bulger and Flemmi and

thereby emboldened them to commit crimes they would not otherwise

have committed. Knowledge of this speculation, both in the press

and at Rakes' own trial, was enough to trigger a duty to inquire.

"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." McIntyre, 367 F.3d at 52 (quoting

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

Given a suspicion that Connolly was partially to blame for their

woes, it was incumbent on Rakes and Dammers to search out relevant

information about Connolly's role in emboldening Bulger and Flemmi,

or risk losing their claims.

-30-
 Had Rakes and Dammers undertaken such an inquiry, they

would easily have found all of the newspaper accounts summarized

here. Under these circumstances, we are compelled to conclude that

their claim accrued by late 1998, after Rakes' own trial and the

publication of the articles surrounding Flemmi's. This conclusion

is supported by McIntyre, where, in the second of two consolidated

appeals, we encountered a very similar set of legal claims, brought

forward by the family of a man who had allegedly been murdered by

Bulger. See McIntyre, 367 F.3d at 58 (plaintiffs "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" the harm alleged). We found

the voluminous media coverage of many of the same events that

concern us here, standing alone, enough to trigger the accrual of

the plaintiffs claims by May 11, 1999, precisely the same date as

is relevant in the present case.

We are convinced that, prior to May 11, 1999, Rakes and

Dammers ought to have been aware of the speculation surrounding

Connolly's relationship to the FBI, and that almost any inquiry on

the question would have turned up enough information to convince

them that this was likely the case. A reasonable person in either

of the plaintiffs' positions, armed with this much knowledge, would

believe both that he was injured and that the government caused the
-31-
injury. We therefore hold that Rakes and Dammers' claims accrued

more than two years before the date on which they filed their

administrative complaints.

III. Tolling Arguments

In addition to their arguments under the discovery rule,

in the district court both parties argued that they should have

been excused from filing their claims under putatively applicable

doctrines of duress and equitable tolling. These are both tolling

doctrines because, under the right circumstances, they can stop the

running of a limitations period after a claim has accrued. On

appeal, Stephen Rakes abandons his tolling arguments, but Julie

Dammers continues to press her position. After evaluating Dammers'

claims, we conclude that the district court was correct in finding

tolling inapplicable under the circumstances.

A. Availability of Equitable Tolling Under the FTCA

There is at the outset a question whether equitable

tolling can apply to FTCA claims at all. This is because equitable

tolling is not a rule about the accrual of a claim; equitable

tolling instead halts the running of the clock once a claim has

accrued. While the rule governing delayed accrual fits comfortably

with the statutory language, which makes no provision for

determining when a claim accrues, tolling of the statute after

accrual fits the language of the statute less comfortably. Because

28 U.S.C. § 2401(b) provides no express exceptions to the two-year

time limit that begins once a claim accrues, the question is
-32-
whether tolling is implicitly permissible. The twin poles of the

analysis we must undertake to answer the question are the Supreme

Court's decisions in Irwin v. Dep't of Veterans Affairs, 498 U.S.

89 (1990), and United States v. Brockamp, 519 U.S. 347 (1997).

In Irwin, the Court considered whether the statute of

limitations governing claims against the government under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

contained an implied equitable tolling provision. The Court noted

that:

We have allowed equitable tolling in
situations where the claimant has actively
pursued his judicial remedies by filing a
defective pleading during the statutory
period, or where the complainant has been
induced or tricked by his adversary's
misconduct into allowing the filing deadline
to pass. We have generally been much less
forgiving in receiving late filings where the
claimant failed to exercise due diligence in
preserving his legal rights.

498 U.S. at 96. So saying, it announced that the "same rebuttable

presumption of equitable tolling applicable to suits against

private defendants should also apply to suits against the United

States." Id. at 95-96. This was in part because, the Court said,

once Congress has waived sovereign immunity, "making the rule of

equitable tolling applicable to suits against the Government, in

the same way that it is applicable to private suits, amounts to

little, if any, broadening of the congressional waiver." Id. at

95.

-33-
 Brockamp set the outer boundary of the rule announced in

Irwin. In Brockamp, the Court found that the limitations provision

applicable to suits for tax refunds under 26 U.S.C. § 6511

contained no implied equitable tolling provision. The provision at

issue in that case set forth a detailed mechanism for determining

which claims could be brought and under what circumstances,

provided explicit exceptions and varied the amount of damages

recoverable with the amount of time elapsed between overpayment and

the filing of a suit. The Court said of the section that "its

technical language, the iteration of the limitations in both

procedural and substantive forms, and the explicit listing of

exceptions, taken together, indicate to us that Congress did not

intend courts to read other unmentioned, open-ended, 'equitable'

exceptions into the statute that it wrote. There are no

counterindications." Brockamp, 519 U.S. at 352.

Unlike the statute at issue in Brockamp, the FTCA's

limitation provision speaks in clear and simple terms of its time

limitation. In this regard, it is far more like the provision at

issue in Irwin. The other circuits generally explicitly agree or

simply take it as given that equitable tolling defenses are

applicable in the context of the FTCA. See, e.g., Motley v. United

States, 295 F.3d 820, 824 (8th Cir. 2002); Perez v. United States,

167 F.3d 913, 917 (5th Cir. 1999); Lehman v. United States, 154

F.3d 1010, 1016 (9th Cir. 1998); Muth v. United States, 1 F.3d 246,

251 (4th Cir. 1993).
-34-
 We note that Dammers in fact argues two distinct tolling

doctrines in support of her position. Specifically, she argues

that she was delayed in filing her claim because 1) she was under

duress as a result of being threatened by members of the Winter

Hill Gang, and 2) the government fraudulently concealed or

misrepresented information vital to her claim. Both of these

arguments drink from the same cup: they both propose that

considerations of justice and equity require allowing an extension

of the time for filing. Because of this similarity, we can see no

reason to distinguish between the theories for purposes of

determining whether they may be applied to delay the deadline for

filing a federal claim under the FTCA. Consequently, we conclude

that fraudulent concealment and duress are both available for

tolling FTCA claims.

B. Duress

Dammers asserts that she was threatened by members of the

Winter Hill Gang, and that she was afraid that bringing a lawsuit

related to the loss of her store would provoke the gang members to

harm her. Dammers' duress claim fails because Dammers has not

alleged a sufficient causal nexus between the actions of the

government or its agents and the duress she claims to have

experienced. There is no contention here that the government was

still, in May 1999, fostering Bulger and Flemmi's criminal

behavior. Dammers' theory suggests that, because the government in

effect turned Bulger, Flemmi, and their disciples loose on South
-35-
Boston, it was responsible for their conduct even beyond the period

during which Connolly was supporting them.

The district court thought that, in order to find

Dammers' claim tolled on the ground of duress, it was necessary for

Rakes and Dammers to allege sufficient facts to permit an inference

that the United States "used coercive acts of [sic] threats against

them." Rakes, 352 F. Supp. 2d at 81. This may overstate the rule,

for we think that a claim of duress levied against the United

States during the period in which Connolly was actively engaged in

protecting Bulger and Flemmi from oversight by law enforcement

might conceivably have been made out. But it is true that in

general, duress only makes sense as a response to a statute of

limitations defense where the party asserting that defense is

putatively responsible both for the original tort and for the

plaintiff's continued fear of seeking redress. See Pahlavi v.

Palandjian, 809 F.2d 938, 942 (1st Cir. 1987) (noting crucial

importance of "allegations of wrongful conduct . . . that was

causally related to the plaintiff's . . . fear").

In order to prevail under this rule, Dammers must be able

to demonstrate duress caused by the government continuously until

May 11, 1999. By that date, however, Connolly had long been out of

the business of partnering with Bulger. "[E]quitable tolling is

based on concealment or other misconduct by the defendant."

Crawford v. United States, 796 F.2d 924, 926 (7th Cir. 1986). Once

the misconduct ceased, and the United States began actively seeking
-36-
to frustrate rather than further the Winter Hill Gang's criminal

activities, the government was, under the facts in this case, no

longer responsible for ongoing threats made by members of the

Winter Hill Gang. We therefore agree with the district court that

Dammers' duress argument fails.

C. Fraudulent Concealment & Misrepresentation

Dammers also contends that her claim is tolled because

the government fraudulently denied any wrongdoing and otherwise

deliberately failed to disclose certain facts known to it that

would have enabled her to bring her claim. The rule governing

fraudulent concealment is that "[t]he defendant raising the

limitations defense must have engaged in fraud or deliberate

concealment of material facts relating to his wrongdoing and the

plaintiff must have failed to discover these facts within the

normal limitations period despite his exercise of due diligence."

Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 229 (1st Cir.

1990). The district court found that the claim was not tolled

under this rule because plaintiffs had not acted with diligence in

investigating their claims. The court rested its decision on the

same grounds on which it had rested its discovery rule holding:

that, because "Rakes and Dammers should have known of sufficient

facts underlying their theories of liability prior to May 11, 1999

under the objective accrual test of McIntyre, it follows that Rakes

and Dammers fail to meet the second prong of the fraudulent

-37-
concealment test because they were not acting with due diligence."

Rakes, 352 F. Supp. 2d at 81.

The district court was correct. This reasoning means, we

acknowledge, that a plaintiff whose argument for delayed accrual

under the discovery rule has failed because she has not diligently

investigated her claim will never be able to successfully argue

that the statute of limitations has been tolled under a fraudulent

concealment theory. This is because both doctrines require a

plaintiff to exercise diligence in investigating a claim or risk

losing it. See Callahan, 426 F.3d at 455. Of course, if even

diligent investigation would have revealed nothing useful, the time

for filing may be extended. Where, on the other hand, a plaintiff

could have turned up needed information through investigation, but

has failed to exercise the requisite diligence, she will not be

able to avail herself of either doctrine, and will lose her claim.

Such was the case here, and as a result, the statute of limitations

was not tolled.

IV. Conclusion

Stephen Rakes and Julie Dammers filed their claims too

late, and the district court consequently had no jurisdiction over

them. The district court's order dismissing the case for lack of

subject matter jurisdiction is affirmed.

-38-