Donahue v. United States

TORRUELLA, Circuit Judge,

concerning the denial of en banc review.

Some cases are of “exceptional impor*525tance”1 because of the potential they have to affect the lives of millions of people. See, e.g., Igartúa, et al. v. United States, 654 F.3d 99, 101-02 (1st Cir.2011) (Torruella, J., dissenting). Other cases are of exceptional importance because of the light they cast on our public institutions. The latter, while not always directly affecting as broad a segment of the population, are nevertheless exceptionally important by virtue of what they demonstrate about the trust that we — for better or worse — place in those institutions. This is one of those cases. Yet barely a month since a divided vote in Igartúa denied 4 million United States citizens residing in Puerto Rico review of constitutional issues of exceptional importance, this court continues this noxious pattern and once again prevents consideration by the full court of questions of exceptional importance. By this action it allows the government’s outrageous conduct to remain free of any consequence, and as in Igartúa, perpetrates a monstrous injustice on another, albeit smaller, but no less worthy, group of hapless citizens.

This is not the appropriate occasion for revisiting in any detail my disagreement with the panel’s majority opinion. I indicate here only the grounds for my belief that the error presented in this case is sufficiently important to merit en banc review.

Beyond its implications for the Donahue and Halloran families, this case has thrust renewed attention on the FBI’s reliance on confidential criminal informants, and the obvious ways in which this relationship can become too cozy for comfort. Public trust in our institutions requires that when these institutions stray, they be held accountable and made to absorb the costs of their conduct. They ought not be perceived as operating with de facto impunity. Although it is hoped that these agencies will learn from these dreadful examples of government gone amuck, future reform is of little consolation to those injured by official malfeasance.

This concern would be important even if our cases required the panel’s result. But they do not. The government’s claim that the Donahue and Halloran estates filed their claims too late rests on an astonishingly one-sided understanding of what reasonableness requires. The panel majority pins the accrual date as September 2, 1998, based upon publicity arising from FBI Agent Morris’s revelations about the leak of Halloran’s identity to Bulger. I cannot see in what way it is “reasonable” to expect surviving family members to credit prima facie outrageous speculation in the papers that high-level and systemic FBI corruption may have contributed to their injury, particularly when — as here— the government had repeatedly assured them over the years that someone else was responsible. Is it so unreasonable for citizens to rely on what their government was repeatedly asserting as the truth? Can the government be allowed to benefit from its own perfidious conduct in duping its own citizens with stonewalling and outright lies? Are citizens to be held to such a standard of cynicism in their dealings with government, especially with such hallowed agencies as the FBI?

Moreover, as the parties have represented, even if the publicity surrounding Morris’s revelations triggered a duty to inquire, that alone is not sufficient for accrual. See McIntyre v. United States, 367 F.3d 38, 52 (1st Cir.2004) (stating that although a “mere hunch, hint, suspicion, or rumor of a claim” may “give rise to a duty to inquire into the possible existence of a claim,” a claim “does not accrue ” on that basis) (first emphasis in original, second *526emphasis added). What triggers accrual is having enough information at one’s disposal to file a claim — in other words, accrual occurs at the rational endpoint of inquiry, not at its outset. Cf. Merck & Co., Inc. v. Reynolds, — U.S. -, 130 S.Ct. 1784, 1797, 176 L.Ed.2d 582 (2010) (rejecting argument that limitations period under 28 U.S.C. § 1658(b)(1), which runs from “discovery” of violation, begins to run “when a plaintiff would have begun investigating”) (emphasis in original). It is hard to see how it could be otherwise, as I can see no reason to think there is a usefully general answer to the question of what the period of time should be between when inquiry begins and when it will yield sufficient evidence to support filing an FTCA claim. Given that the government was actively stonewalling as late as 2005— some seven years after Morris’s testimony — even if the parties were on inquiry notice, they would not have discovered anything useful and reliable until, at the earliest, the publication of Judge Wolfs decision in Salemme in September of 1999.2

Taken individually, these concerns — individual injustice, loss of public trust, and substantial legal error — might not by themselves justify en banc review. Taken together, I believe they do.

As in Igartúa, the underpinning for this outcome is an anachronistic judicially invented legal theory that has no validity or place in American law — in this case, sovereign immunity. Two hundred and thirty-five years after we rid ourselves of King George III and his despotic ascendancy over colonial America, we cling to a doctrine that was originally based on the Medieval notion that “the King can do no wrong.” This maxim was blindly accepted into American law under the assumption that it was incorporated as part of the common law in existence when our Nation separated from England. See Owen v. City of Independence, Mo., 445 U.S. 622, 645 n. 28, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). However, this assumption does not withstand historical scrutiny. See Edwin M. Borchard, Governmental Responsibility in Tort (pt. VI), 36 Yale L.J. 1, 17-41 (1926). Furthermore, the present case is the quintessential example of the fact that at times the government can, and does, do wrong.

More importantly, the doctrine of sovereign immunity cannot be sustained in the face of our constitutional structure. Although its language is far from specific in many parts, the Constitution nevertheless contains nothing, specific or implied, adopting the absolutist principal upon which sovereign immunity rests. Furthermore, the record of the debates preceding the adoption of the Constitution are bare of any language or asseveration that might serve as a basis for support of this monarchist anachronism. See generally Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L.Rev. 1201 (2001); Susan Randall, Sovereign Immunity and the Uses of History, 812 Neb. L.Rev. 1 (2002). In fact, the establishment in this country of a republican form of government, in which sovereignty does not repose on any single individual or institution, made it clear that neither the government nor any part thereof could be considered as being in the same infallible position as the English king had been, and thus immune from responsibility for harm that it caused its citizens.

Not only is sovereign immunity inconsistent with a central tenet of American government that no one, including the government, is above the law, it also runs contrary to specific, fundamental provi*527sions of the Constitution: the Supremacy Clause3 and the Due Process Clause of the Fifth Amendment.4 Even assuming arguendo that the doctrine of sovereign immunity was part of English common law, its transference to our legal system would have been • prevented, and was trumped, by the Constitution and its Supremacy Clause, and especially by the Due Process Clause, which requires that the tortuous deprivation of the lives of citizens by the government’s felonious agents and partners be duly compensated.

Many jurisdictions have recognized the incompatibility of sovereign immunity with democratic principles. In the United States, many state high courts have rejected sovereign immunity as fundamentally unjust. See, e.g., Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, 458 (1961); Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, 94 (1959); Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480, 482 (1943). As a result of judicial and legislative action, “only a handful of States still cling to the old common-law rule of immunity for governmental functions.” Owen, 445 U.S. at 645 n. 28, 100 S.Ct. 1398. Globally, there is a trend among major democratic nations towards the abolition of sovereign immunity. See Denise Gillman, Calling the United States’ Blujf: How Sovereign Immunity Undermines the United States’ Claim to an Effective Domestic Human Rights System, 95 Geo. L.J. 591, 636-46 (2007). Even the United Kingdom, from which it is believed (wrongly, see Borchard, supra) the American notion of sovereign immunity derived, abrogated the government’s immunity from suits in tort through the Crown Proceedings Act of 1947. See James E. Pfander, Government Accountability in Europe: A Comparative Assessment, 35 Geo. Wash. Int’l. L.Rev. 611, 615-17 (2003).

The Donahue and Halloran cases are an unfortunate but vivid example that even in the United States, with all our legal and constitutional safeguards, the government can go rogue. Although it is my belief and hope that our system is normally self-corrective, there are times when the courts have a duty to intervene to keep our system within the bounds of decency. This is such a time, but sadly, this court has failed in its duty. The concept of sovereign immunity may be beyond the power of this court to challenge. However, this court had other valid grounds to correct the injustice of the panel opinion. We have in the past tolled the Federal Tort Claims Act’s statute of limitations when the government deliberately concealed evidence of its wrongdoing, and there was no reason for us not to do so here. See Attallah v. United States, 955 F.2d 776, 779-80 (1st Cir.1992) (finding FTCA statute of limitations tolled when government deliberately concealed evidence of murder by Customs employees). Moreover, even if we must respect the notion of sovereign immunity, that respect did not require the harsh and unjust result in this case. The FTCA waives the United States’ sovereign immunity for a claim presented within two years after the claim “accrues,” 28 U.S.C. § 2675(a), and it was within this court’s power to interpret the accrual requirement broadly enough to allow the claims in this case to proceed. See United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171 (1949) (“We think that the congressional attitude in passing the [FTCA] is ... accurately reflected by [the] statement ...: ‘The exemption of the sovereign from suit involves hardship enough, where consent has been *528withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’ ”) (quoting Anderson v. Hayes Constr. Co., 243 N.Y. 140, 153 N.E. 28, 29-30 (1926) (Cardozo, J.)). I believe this court should have granted en bane review to petitioners, reversed the decision of the panel, and reinstated the judgment of the district court granting damages to petitioners against the government for its felonious part in the murder of their loved ones.

James “Whitey” Bulger has finally been apprehended, and is now being haled into the federal courthouse in Boston to answer for the crimes he allegedly committed years ago. But unlike Bulger himself, thanks to the panel majority’s decision and the full court’s refusal to reverse it, Bulger’s most trusted associate — the Boston FBI office — has gotten away with murder. This is the wrong outcome, and most importantly, our law does not require it. Cf. Attallah, 955 F.2d at 779-80. The moral of this outcome seems to be that crime does pay, at least for the government. This case cries for redress, either by the Supreme Court, or by a special bill of Congress.

. See Fed. R.App. P. 35(a)(2).

. See United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999).

. U.S. Const, art. VI, § 2, cl. 2.

. U.S. Const, amend. V.