United States Court of Appeals
For the First Circuit
No. 05-2093
CATHERINE DEEGAN PATTERSON, INDIVIDUALLY
AND AS THE ADMINISTRATRIX OF
THE ESTATE OF EDWARD "TEDDY" DEEGAN,
AND YVONNE DEEGAN GIOKA,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA AND DENNIS CONDON,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Joseph L. Tauro, U.S. District Judge]
Before
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Paul F. Denver, with whom Rossman & Rossman was on brief for
appellants.
Joshua P. Waldman, Department of Justice, with whom Peter D.
Keisler, Assistant Attorney General, Michael J. Sullivan, United
States Attorney, and Robert S. Greenspan, Department of Justice,
were on brief for appellee.
June 22, 2006
CYR, Senior Circuit Judge. Catherine Deegan Patterson
and Yvonne Deegan Gioka appeal from the district court judgment
which dismissed their Federal Tort Claims Act (FTCA) complaint due
to their failure to file within the applicable two-year statute of
limitations. See 28 U.S.C. § 2401(b). We affirm.
I
BACKGROUND
In March 1965, two FBI informants – Vincent Flemmi and
Joseph Barboza – murdered Edward “Teddy” Deegan in Chelsea,
Massachusetts. The Boston office of the Federal Bureau of
Investigation (FBI) knew beforehand of the informants' plans, but
did nothing either to stop the murder, or to prevent the subsequent
wrongful conviction of two other men – Peter Limone and Joseph
Salvati – for the Deegan murder.
In December 2000, the Boston Globe, in a series of
sensational exposés of corruption within the Boston FBI office,
revealed the FBI’s complicity in the Deegan slaying. For example,
on December 21, 2000, the Boston Globe published an article titled
“FBI REPORTEDLY HID KEY EVIDENCE, DOCUMENTS SHOW IT KNEW OF DEEGAN
SLAYING PLOT IN '65,” in which it reported: “Secret documents
recently discovered in a Justice Department probe of FBI corruption
appear to show that the bureau knew not only that the wrong men
were convicted of a 1965 gangland murder, but also that agents were
told about the plot two days before it happened and apparently did
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nothing to stop it.” During the following month, the story received
national press coverage. On January 8 and 18, 2001, respectively,
a Massachusetts superior court judge vacated the Limone and Salvati
convictions, which actions likewise received local and national
media attention.
On January 27, 2003, Teddy Deegan’s brother Richard
submitted an administrative claim for wrongful death under the FTCA
against the United States, purporting to act as the “voluntary”
administrator of Teddy’s estate. As Massachusetts law does not
recognize the authority of voluntary administrators to submit
wrongful death claims, see Marco v. Green, 615 N.E.2d 928, 932
(Mass. 1993), the government denied Richard Deegan’s administrative
claim.
On December 5, 2003, Catherine Deegan Patterson (acting
as the newly-appointed administrator of her father’s estate) and
her sister Yvonne Deegan Gioka submitted their own administrative
claim to the government, seeking recompense both for their father’s
wrongful death and for infliction of emotional distress. Patterson
was residing in New Hampshire, Gioka in Georgia. The government
denied the Patterson and Gioka administrative claim as untimely,
and on August 20, 2004, Patterson and Gioka timely filed the
instant complaint in the United States District Court for the
District of Massachusetts, asserting both wrongful death and
emotional distress claims. The United States moved to dismiss the
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complaint due to the failure of plaintiffs’ December 5, 2003
administrative claim to satisfy the FTCA’s two-year limitations
provision. See 28 U.S.C. § 2401(b). In response, Patterson and
Gioka argued, inter alia, that (i) Gioka’s administrative claim was
timely because she lived in Georgia, and did not learn of the FBI’s
involvement in her father’s death until Catherine told her the news
in the summer of 2002; and (ii) their December 2003 administrative
claim, even if untimely, should nonetheless “relate back” to the
date of their Uncle Richard’s original and timely administrative
claim on January 27, 2003.
The district court rejected both contentions and granted
the government’s motion to dismiss. The court pointed to the
extensive national press coverage the Deegan story had received,
then found that the Gioka claim had accrued more than two years
prior to the filing of their December 2003 claim. The court also
spurned the “relation back” argument on the ground that Richard,
qua “voluntary administrator,” was not authorized under
Massachusetts law to submit a claim in behalf of the Deegan estate,
thus the government had no reason or responsibility to investigate
his wrongful death allegations. Patterson and Gioka now appeal
from the dismissal order.
II
DISCUSSION
Because the parties do not dispute the predicate
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jurisdictional facts, we review the grant of the motion to dismiss
the complaint de novo. See Skwira v. United States, 344 F.3d 64,
72 (1st Cir. 2003), cert. denied, 542 U.S. 903 (2004); Fed. R. Civ.
P. 12(b)(1). The FTCA permits individuals to sue the United States
“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)(1), but limits this waiver of
sovereign immunity by prescribing 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,” id. § 2401(b). Thus, this limitations
provision, ensuring that the government is promptly presented with
a claim while the evidence is still fresh, is to be strictly
construed in the government’s favor. See United States v. Kubrick,
444 U.S. 111, 117-18 (1979); Skwira, 344 F.3d at 73. The two-year
limitations provision commences upon the “accrual” of the claim,
which occurs when the plaintiff knew or reasonably should have
known (i) she was injured and (ii) the cause of the injury. See
id.
A. The December 2003 Administrative Claim
The plaintiffs first contend that, since Gioka neither
knew nor had reason to know of the FBI’s involvement in her
father’s murder until the summer of 2002, the district court erred
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in finding that the Gioka administrative claim, presented to the
government in December 2003, was untimely under § 2401(b). The
plaintiffs assert that the publicity about the case was centered
primarily in the Boston area rather than national in scope, and
that Gioka, who was in chronic poor health, lived in Georgia where
she was not presumptively exposed to Boston media reports.
For purposes of calculating the § 2401(b) accrual date,
the government need not demonstrate that plaintiffs had actual
knowledge of the news of December 2000-January 2001; “‘[w]here
events receive widespread publicity, plaintiffs may be charged with
[constructive] knowledge of their occurrence.’” Callahan v. United
States, 426 F.3d 444, 452-53 (1st Cir. 2005) (quoting McIntyre v.
United States, 367 F.3d 38, 60 (1st Cir. 2004)). Thus, the test is
an objective one. See McIntyre, 367 F.3d at 52. The record
demonstrates beyond serious dispute that the breaking news of the
FBI’s involvement in the Deegan murder did receive such widespread
publicity. The Boston Globe and the Boston Herald published
prominent accounts detailing the new facts relating to the FBI’s
role in the Deegan slaying, which were subsequently picked up by
national wire services (API), nationally circulated news
publications (inter alia, the New York Times, the Chicago Tribune,
the Washington Post, the Los Angeles Times, and USA Today), and
national network news (e.g., the CBS Early Show). Thus, the fact
that Gioka resided in Georgia in December 2000-January 2001 is
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insufficient to vitiate a finding that she should have learned of
the news at that time.
Gioka also contends that her medical condition, which
included cognitive problems arising from an automobile accident, a
stroke, and Lyme disease, prevented her from making a reasonable
inquiry and discovering the FBI’s complicity in her father’s
murder. Assuming, without deciding, that § 2401(b) might permit
such a “mental incapacity” exception,1 Gioka has not alleged facts
which would enable her to assert it. She does not contend that her
illnesses rendered her mentally incompetent. Thus, at a minimum,
she would have to point to evidence demonstrating that the degree
of her mental incapacity rendered her “incapable” of discovering
with the exercise of reasonable diligence – and then of
1
Because § 2401(b) is a crucial condition to the United
States’ waiver of sovereign immunity under the FTCA, any exceptions
to its limitation must be strictly construed in the government’s
favor. See Kubrick, 444 U.S. at 117-18. Although we have
recognized some potential equitable exceptions to the FTCA
limitations provision, see Rakes v. United States, 442 F.3d 7, 25
(1st Cir. 2006) (government-caused duress), Gioka does not assert
that the government was in any way responsible for her mental
conditions. Further, we previously have noted, albeit in dicta,
that mental capacity may not be an appropriate equitable defense to
§ 2401(b). See, e.g., Nunnally v. MacCausland, 996 F.2d 1, 5 n.6
(1st Cir. 1993); Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st
Cir. 1987). In any event, even if such a defense theoretically
were available, it surely would be no less stringent than the rule
which pertains outside the FTCA context, viz., "the traditional
rule that mental illness tolls a statute of limitations [applies]
only if the illness in fact prevents the sufferer from managing his
affairs and thus from understanding his legal rights and acting
upon them.” See Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.
1996); see also Lopez, 808 F.2d at 907.
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understanding – the news of the FBI’s involvement in her father’s
death. See, e.g., Barnhart v. United States, 884 F.2d 295, 298-99
(7th Cir. 1989).
Gioka has failed to make the requisite showing. She
presents no medical reports detailing precisely how, or to what
extent, her illnesses in fact impaired her ability to discover or
comprehend the facts which were widely publicized in the national
media. The Gioka affidavit merely states: “At times, my concern
about my health has been overwhelming and has left little room for
other matters, including considerations of my father’s death.” She
does not specify at which “times” she was incapacitated, which
leaves open the possibility that she was not significantly
impaired, for example, in December 2000 and early 2001 when the
Deegan story first broke in the press. Further, even if we were to
infer that her medical condition kept her bedridden or housebound,
it apparently did not prevent her from accessing the media, since
she admits to “a memory of seeing the very end of a CNN report
about Mr. Salvati.” Finally, Gioka’s sister, Catherine Patterson,
admits that she had knowledge of the pertinent facts by the summer
of 2001,2 and it strains credulity to suggest that Patterson,
knowing of her sister’s alleged inability to conduct her own
reasonably diligent inquiry, waited until the summer of 2002 to
2
Accordingly, Patterson does not argue on appeal that her
December 2003 administrative claim was timely as to her own claims.
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inform her sister of those facts. Thus, even assuming arguendo
that mental incapacity could toll the accrual of an FTCA claim,
Gioka has not provided a sufficient factual basis entitling her to
that defense.
B. The January 2003 Administrative Claim
By analogy to Federal Rule of Civil Procedure 15(c)(3),
plaintiffs argue that their untimely administrative claim of
December 2003 should “relate back” to the timely administrative
claim submitted by their Uncle Richard, on January 27, 2003, for
$100 million in damages, because the latter presented the same core
allegations concerning the FBI’s complicity in the wrongful death
of their father. Further, they contend that the government would
suffer no prejudice, since even if Richard had no authority under
Massachusetts law as a “voluntary” administrator to file claims in
behalf of his brother’s estate, the FTCA notification requirement
is not intended to be applied hyper-technically, but is satisfied
if, as here, the government receives sufficient information to
allow it to investigate the particular allegations of government
misfeasance. See 28 U.S.C. § 2675(a); Kubrick, 444 U.S. at 356-57;
Santiago-Ramirez v. Sec’y of Dep’t of Def., 984 F.2d 16, 19 (1st
Cir. 1993).3 Thus, they maintain that the government is on notice
3
The plaintiffs also state on appeal that, in order to avoid
any unfair prejudice to the government, they intend that their
claims relate back only to the extent of the damages set forth in
Richard’s original administrative claim, viz., $100 million.
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to investigate even if the claimant – viz., Richard – had no legal
standing to bring the eventual lawsuit against the government.
The district court held that the plaintiffs’ claims could
not “relate back” to Richard’s January 27, 2003 claim because
Richard – as a mere “voluntary” administrator – had no legal
authority to act in behalf of his brother’s estate, thus the
government had no “incentive” to investigate the merits of his
claim. Although this conclusion arguably may make sense from the
policy standpoint that the government should not be made to commit
its valuable time and resources to investigate a claim asserted by
a party which lacks legal standing to pursue either settlement or
litigation, the district court cited no supportive case authority
for this proposition, and the legal question is neither
straightforward nor well-settled. Indeed, we have noted that the
express jurisdictional prerequisites of § 2675(a) are fully
satisfied as long as the claimant states a claim of government
wrongdoing and defines its damages in a sum certain, see Santiago-
Ramirez, 984 F.2d at 19 (“This Circuit approaches the notice
requirement leniently.”), and other courts have rejected the
additional “standing” requirement relied on by the district court,
see, e.g., Free v. United States, 885 F.2d 840, 842-43 (11th Cir.
1989) (finding that an administrative claim filed by decedent’s
brothers and sisters, with no accompanying evidence that they had
been appointed as legal representatives of the estate, nonetheless
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satisfied the jurisdictional requirements of § 2675(a)); Ozark Air
Lines, Inc. v. Delta Air Lines, Inc., 63 F.R.D. 69, 71 (N.D. Ill.
1974) (rejecting the government’s argument that an administrative
claim filed by a person who did not own the damaged property did
not satisfy the jurisdictional requirements of § 2675(a)); see also
Avila v. INS, 731 F.2d 616, 619-20 (9th Cir. 1984) (noting that
“[a]ny other [presentment] requirements imposed by administrative
regulations pursuant to section 2672 are not a bar to jurisdiction
by the federal courts.”) In other words, plaintiffs urge that,
though the claimant’s lack of standing may present an opportunity
to dismiss the case against the government at some juncture, it is
not a jurisdictional bar rendering the administrative claim legally
void ab ovo. We need not resolve this thorny issue in the instant
case.
Although the district court chose to bypass the question,
the record demonstrates that Richard’s January 27, 2003
administrative claim was not timely, and relation back (even if
permissible) would therefore be futile. See Global Naps, Inc. v.
Verizon New England, Inc., 444 F.3d 59, 69 (1st Cir. 2006)
(observing that appellate court may affirm on any ground supported
by the record). As we have already noted, most of the breaking
publicity concerning the FBI’s complicity in the Deegan slaying
occurred in December 2000 and early January 2001, and became a
prominent topic of public interest especially within the Boston
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media market.
At this time, Richard was residing in that very Boston
media market, viz., on nearby Cape Cod, Massachusetts. The
plaintiffs rely on Richard’s attestations that he was retired at
this time, and heard nothing of these media reports. As we have
noted, however, the test for FTCA accrual is not subjective, but
objective, and in these particular circumstances, Richard must be
assumed to have been exposed to the widespread in-state publicity
concerning his own brother’s murder. Moreover, assuming without
deciding that Richard’s retirement status might equitably toll the
FTCA accrual date, the record does not contain any factual
allegations to support the requisite inference that Richard’s
retirement was either so cloistered or debilitative that it
prevented him from gaining access to these widespread media
reports. Finally, and most importantly, the Boston Globe published
an article on December 21, 2000 entitled “FBI REPORTEDLY HID KEY
EVIDENCE, DOCUMENTS SHOW IT KNEW OF DEEGAN SLAYING PLOT IN '65,”
and the very next day, the Globe published an article entitled
“SLAY VICTIM'S FAMILY TROUBLED BY REPORT ON FBI,” in which a
reporter interviewed Richard Deegan himself about the breaking
news.
As Richard’s administrative claim was submitted more than
two years after he reasonably should have acquired knowledge of the
FBI’s involvement in his own brother’s murder, it was untimely, and
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thus the plaintiffs’ attempts to have their claims relate back to
that claim are plainly futile.
Affirmed.
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