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.
-2-
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,
-4-
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.
-7-
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
-11-
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
-12-
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.
-14-
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.
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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
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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-
Rakes v. United States
Court: Court of Appeals for the First Circuit
Date filed: 2006-03-23
Citations: 442 F.3d 7
Copy Citations