340 F.Supp.2d 79 (2004) | Cited 5 times | D. Massachusetts | October 15, 2004



This action arises out of the circumstances surrounding thedeath of Debra Davis ("Davis") in September 1981, allegedly atthe hands of Stephen J. Flemmi and James J. Bulger. At the timeof Davis's death, Flemmi and Bulger were "top echelon" informantsfor the Federal Bureau of Investigation (the "FBI") and allegedleaders of the Boston area's Winter Hill Gang, an association ofindividuals engaged in criminal activities. In counts I throughVI of her amended complaint, Olga Davis (the "plaintiff"),adminstratrix of the Estate of Debra Davis (the "Estate"),claims, inter alia, that the United States (sometimeshereinafter referred to as the "government") and otherswrongfully caused Davis's death by permitting Flemmi and Bulgerto commit criminal activities with impunity, including murderingDavis and others. The claims against the government purport to have been broughtpursuant to the Federal Tort Claims Act ("FTCA"),28 U.S.C. §§ 1346, 2401, 2671, et seq. The plaintiff, in substance, assertsthat the government failed in its duty to warn and protect Davisfrom wrongful acts committed against her by the government'sinformants, Flemmi and Bulger. Tort claims for damages againstthe United States may be maintained only to the extent thatsovereign immunity is waived by the FTCA. Wood v. UnitedStates, 290 F.3d 29, 35 (1st Cir. 2002). Subject to certainrequirements, the FTCA permits civil actions against thegovernment for injuries caused by the wrongful conduct of anyemployee of the government, acting within the scope of his or heremployment, under circumstances in which a private person wouldbe liable to the claimant. 28 U.S.C. § 1346(b). The governmenthas moved under Fed.R. Civ. P. 12(b)(1) to dismiss all of theclaims against it, arguing that the court lacks subject matterjurisdiction over the claims because (1) the plaintiff failed topresent her administrative claim to the appropriate federalagency within two years of the accrual of that claim; (2) theconduct upon which the claims are based was committed by FBIagents acting outside of the scope of their employment; (3) thealleged failure of the United States to warn or protect Davis isnot actionable under state law; and (4) the alleged failure towarn or protect Davis falls within the discretionary functionexception of the FTCA.

On March 31, 2004, I entered an electronic order denying themotion of the United States to dismiss. This memorandum setsforth the reasons for that ruling.


Except for the allegations specifically mentioning Davis, mostof the allegations in the lengthy amended complaint were drawnfrom the findings of fact in United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999) (Wolf, J.), rev'd in part onother grounds by United States v. Flemmi, 225 F.3d 78 (1st Cir.2000), cert. denied, 531 U.S. 1170 (2001). In brief, theamended complaint alleges that in the late 1970's, the FBIrecruited Flemmi and Bulger as "top echelon" informants toinvestigate, arrest, and prosecute members of La Cosa Nostra("LCN," sometimes known as the "Mafia"), a criminal organizationthat was a rival to the Winter Hill Gang. The FBI allegedlyagreed that, in exchange for the information Flemmi and Bulgerprovided, the FBI would protect the gangsters from prosecutionfor their criminal activities. In fulfillment of this promise,the FBI not only failed to take action when it discovered thatFlemmi and Bulger were committing crimes, including murder, butthe FBI also allegedly helped Flemmi and Bulger evadeinvestigation and prosecution by other law enforcement agencies.This protection was accomplished through the conduct of FBI agentJohn J. Connolly, Jr., the "handler" of Flemmi and Bulger, aswell as through John Morris, Connolly's immediate supervisor, andother supervisory agents. The plaintiffs allege that theprotection afforded Flemmi and Bulger by FBI agents allowed thetwo criminals to kill Davis in 1981, without fear of prosecution,after the twenty-six year old Davis had announced to Flemmi thatshe wanted to end their relationship of approximately nine years.In or about October 2000, a former member of the Winter Hill Gangdisclosed the location of Davis's remains to law enforcementofficers.

In considering the government's motion to dismiss for lack ofsubject matter jurisdiction, I may "accept[] the plaintiff'sversion of jurisdictionally-significant facts as true" and"assess whether the plaintiff has propounded an adequate basisfor subject matter jurisdiction." Valentin v. Hospital BellaVista, 254 F.3d 358, 363 (1st Cir. 2001). In performing thisanalysis, I must "credit the plaintiff's well-pleaded factualallegations (usually taken from the complaint, but sometimes augmented by an explanatory affidavit or otherrepository of uncontested facts), draw all reasonable inferencesfrom them in her favor, and dispose of the challenge [to subjectmatter jurisdiction] accordingly." This approach to resolving thejurisdiction question is called the sufficiency challenge. 363. On the other hand, "the plaintiff's jurisdictionalaverments are entitled to no presumptive weight" where a partychallenges subject matter jurisdiction "by controverting theaccuracy (rather than the sufficiency) of the jurisdictionalfacts asserted by the plaintiff and proffering materials ofevidentiary quality in support of that position." Id. In thosecircumstances, "the court must address the merits of thejurisdictional claim by resolving the factual disputes betweenthe parties." Id. When the genuinely disputed jurisdictionalfacts are "inextricably intertwined with the merits of the case,"I may "defer resolution of the jurisdictional issue until thetime of trial." This approach is called the factual challenge.Id.

In considering the present motion, I have employed the"sufficiency challenge" approach. In its motion to dismiss, thegovernment has not controverted the factual allegations of theplaintiff. Moreover, the disputed facts relevant to subjectmatter jurisdiction are too numerous and, for the most part, too"inextricably intertwined with the merits of the case," to make a"factual challenge" to subject matter jurisdiction practicable.


A. Timely Presentation of Administrative Claim

The FTCA requires that prior to filing suit, the plaintiff mustpresent an administrative claim to the relevant federal agency(here, the FBI) within two years of the date the claim accrued.28 U.S.C. § 2401(b). Where a claim does not meet thisrequirement, the court does not have jurisdiction to entertainthe claim and must dismiss it. Skwira v. United States,344 F.3d 64, 71 (1st Cir. 2003), cert. denied, 124 S. Ct. 2836 (2004). TheUnited States asserts that the plaintiff's claims against theUnited States accrued more than two years before she presentedher administrative claim to the government on September 17, 2001.The plaintiff argues that her claim could not have accrued priorto October 2000, when Davis's remains were discovered.

I have addressed the law pertaining to the accrual of actionsunder the FTCA in some detail in cases raising claims similar tothose raised in this case. See Donahue v. Federal Bureau ofInvestigation, 204 F. Supp. 2d 169 (D. Mass. 2002); Bennett exrel. Estate of Bennett v. Federal Bureau of Investigation,278 F. Supp. 2d 104 (D. Mass. 2003); Wheeler v. United States, C.A.No. 02-10464-RCL (D. Mass. Mar. 31, 2003), aff'd by McIntyre v.United States, 367 F.3d 38 (1st Cir. 2004); Callahan v. UnitedStates, ___ F. Supp 2d ___, 2004 WL 2181570 (D. Mass. Sept. 28,2004); and Barrett v. United States, ___ F. Supp. 2d ___, 2004 WL2181579 (D. Mass. Sept. 29, 2004). In these cases, I concludedthat, in the First Circuit, which applies a discovery rule withrespect to the application of the statute of limitations inactions brought pursuant to the FTCA, "a claim accrues when theplaintiff discovers, or in the exercise of reasonable diligenceshould have discovered, the factual basis for the cause ofaction." Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002).1 Outside of the medical malpractice context, the"factual basis" for an FTCA claim is "(1) the fact of injury and(2) the injury's causal connection with the government."Skwira, 344 F.3d at 77.

Based on the record before me, and treating the plaintiff'swell-pleaded facts with the requisite level of indulgence, I conclude that it was notunreasonable for the plaintiff to have failed to discover thefactual basis of her claims until Davis's remains were discoveredin October 2000. For this reason, which is explained more fullyin my order in this case denying the motions of the individualdefendants to dismiss based on the statute of limitations (docketno. 74), I denied the motion of the United States to dismissbased on the statute of limitations.

B. Composite Nature of Plaintiff's Claims

I also denied the United States' motion to dismiss because thegovernment's discrete theories of non-liability are inconsistentwith and not sustainable in light of the composite nature of theplaintiff's claims.

Count I summarizes and catalogs the alleged misconduct of thegovernment that led to Davis's murder: The defendant United States and its agency, the Federal Bureau of Investigation negligently continued to utilize Bulger and Flemmi as top echelon informants; negligently failed to control the criminal activities of Bulger and Flemmi, negligently failed to enforce the Attorney General Guidelines governing high echelon informants, including Bulger and Flemmi; negligently and in violation of the regulations and policies of the defendant United States failed to inform the appropriate law enforcement or prosecutive authorities of the criminal activities of Bulger and Flemmi; negligently failed to properly supervise federal agents, including Connolly and Morris, in their handling of Bulger and Flemmi; negligently continued to allow Connolly to remain Bulger and Flemmi's "handler" when it was known or should have been known that he should have been removed from that position; [] negligently failed to warn and protect Davis; and negligently failed to investigate for the purpose of prosecution the circumstances of Davis'[s] disappearance and death. As a result of these wrongful acts . . . events occurred that a reasonable, prudent person would have foreseen in light of the circumstances set forth herein, including the kidnapping, torture and wrongful death of Debra Davis.Amend. Compl. ¶¶ 236, 237. The same allegations are repeatedexplicitly or by incorporation in counts II through VI. Id. ¶¶ 239-266.

Although each of counts I through VI alleges that the liabilityof the government for the death of Davis is premised on a seriesof wrongful acts or omissions, the government has moved todismiss these claims on the basis that the government has notwaived its sovereign immunity as to certain discrete acts ofalleged misconduct. The government's attack on the plaintiff'sclaims is several-fold. It argues that, because federal statutesand regulations do not authorize FBI agents to grant immunity toinformants, any conduct of the FBI agents to shield Bulger andFlemmi from prosecution was outside of the scope of the agents'authority and therefore not actionable under the FTCA. Thegovernment also maintains that any claim based on its allegedfailure to protect Davis is "jurisdictionally barred because aprivate individual would not be liable under analogouscircumstances under state law." Mem. Supp. U.S. Mot. Dismiss at25. The government finally contends that "insofar as [theplaintiff's claims] are based on a failure to protect thedecedent from being harmed by Flemmi or Bulger," the claims areprohibited under the discretionary function exception to theFTCA. Id. at 23.2

The government has correctly identified the parameters of thelimited waiver of sovereign immunity afforded under the FTCA. Thegovernment has not waived its sovereign immunity where the misconduct in question is "based upon the exercise orperformance or the failure to exercise or perform a discretionaryfunction or duty on the part of a federal agency or an employeeof the government." 28 U.S.C. § 2680(a); Muniz-Rivera v. UnitedStates, 326 F.3d 8, 17 (1st Cir. 2003) (upholding dismissal ofFTCA claim for lack of subject matter jurisdiction under the"discretionary function" exception), cert. denied,124 S. Ct. 224 (2003). The court therefore does not have subject matterjurisdiction of claims based on such alleged misconduct. The sameis true where the injury complained of is not "caused by thenegligent or wrongful act or omission of any employee of theGovernment while acting within the scope of his office oremployment, under circumstances where the United States, if aprivate person, would be liable to the claimant in accordancewith the law of the place where the act or omission occurred."28 U.S.C. § 1346(b).

In this case, however, the alleged misconduct cannot be soeasily compartmentalized. As a practical matter, dismissal basedon the grounds suggested by the government would be logisticallyproblematic where sovereign immunity has been waived as to someacts and omissions claimed by the plaintiff, but not as toothers. Thus, because the government has not addressed all of theasserted grounds for liability within each claim, I cannot grantits motion wholesale; nor can I consider dismissal on a count bycount basis.

More importantly, though, the government's method of attackingthe legal sufficiency of the plaintiff's claims misses the mark.The plaintiff's claims against the United States do not simplyarise from an ineffective promise of immunity or a particulardecision not to protect or warn an individual. Instead, theplaintiff alleges that for decades, the FBI allowed — and in someinstances even encouraged — Flemmi and Bulger to commit murderand other serious crimes. Flemmi and Bulger were allegedly able to carry out these criminalactivities because the FBI used deception and its politicalweight effectively to insulate the two alleged gangsters fromprosecution by other federal and state law enforcementauthorities. According to the picture painted by the plaintiff,the FBI carried out its practice of protecting Flemmi and Bulgerwithout any real regard to the foreseeable trail of victims,including Davis. The plaintiff alleges that the institutionalculture of doing whatever was necessary to protect Flemmi andBulger affected numerous practices and spheres of responsibilitywithin the FBI. The fact that the plaintiff has alleged that thegovernment breached a variety of duties in a variety of ways ismerely reflective of the alleged overlapping and interdependentcauses of Davis's death. Therefore, the government cannot escapeliability for the injuries caused by its alleged intercessions onbehalf and encouragement of Flemmi and Bulger by merely arguing,for example, that the FBI agents did not have the authority togrant Flemmi and Bulger the type of immunity that would bar thegovernment from prosecuting them. Similarly, even if a decisionto warn or protect a citizen implicates the exercise of agovernmental discretionary function, I will not partitionallegations that the government's failure to protect Daviscontributed to her death from allegations implicating othertheories of liability. The government's attempt to dissect theplaintiff's claims into isolated pieces at this stage of theproceedings inappropriately eliminates the gestalt of theplaintiff's claim.

The government's approach is not unlike the one Judge Gertneraddressed in Limone v. United States, 271 F. Supp. 2d 345 (D.Mass. 2003), aff'd by Limone v. Condon, 372 F.3d 39 (1st Cir. 2004),3 in which the government argued thatallegations that FBI agents framed three innocent men for murderand allowed them to be wrongfully held in prison for decades werenot actionable under the FTCA because, inter alia, thegovernment's decisions about matters such as whom to prosecute,how to manage informants, and whether to disclose exculpatoryevidence were "discretionary functions." 271 F. Supp. 2d at 353.In a similar vein, the individual defendants in that case —former FBI agents — argued they were entitled to qualifiedimmunity as to the plaintiffs' constitutional claims, because itwas not "clearly established" at the relevant time thatinvestigators were required to disclose exculpatory evidence.Id. at 365-66. Judge Gertner categorically rejected thesepropositions: "The defendants' voluminous motions to dismiss missthe forest for the trees. They argue over and over again thatcertain facts taken in isolation do not state actionable claims,ignoring the big picture." Id. at 349. Referring to the FTCAclaims, she emphasized that "this case is about much more thanthe minutiae of discrete FBI decisions, viewed inisolation. . . ." Id. at 353. In response to the argument ofthe individual defendants that they were entitled to qualifiedimmunity, Judge Gertner observed: While it may be true that the defendants could be entitled to qualified immunity for a narrow claim [for failure to alert a prosecutor or judicial officer of known exculpatory information], the allegations here are much broader. It would make little sense to strike individual allegations of non-disclosure since they are an integral part of the overall story.Id. at 366.4 Similarly, in this case it isinappropriate to anatomize and line-edit the plaintiff's claims as long as there are allegations supporting claims thatbring the conduct of government employees within the ambit of theFTCA.

C. The Government's Separate Defenses I also denied the government's motion to dismiss because, evenif the government had not piecemealed the plaintiff's claims, thedefenses the government has raised are infirm as applied to thefacts alleged in this case.

1. Scope of Employment

The government argues that the plaintiff's claims are barredbecause they are not based on conduct within the scope of the FBIagents' employment. As noted above, the United States has notwaived its sovereign immunity with respect to claims based on theconduct of federal employees acting outside of the scope of theiroffice or employment. 28 U.S.C. § 1346(b). Whether an employee isacting within the scope of his employment is determined by thelaw of the state in which the relevant conduct occurred. Aversav. United States, 99 F.3d 1200, 1209 (1st Cir. 1996). UnderMassachusetts law, "the common law test [of whether an employeeacts within the scope of his/her employment] considers whetherthe act was in furtherance of the employer's work." Clickner v.Lowell, 422 Mass. 539, 542 (1996). "Factors to be consideredinclude whether the conduct in question is of the kind theemployee is hired to perform, whether it occurs within authorizedtime and space limits, and whether it is motivated, at least inpart, by a purpose to serve the employer." Id. at 542.

The scope of an employee's employment "is not construedrestrictively," id. (quoting Howard v. Burlington,399 Mass. 585, 590 (1987)), and it may extend beyond the employee's actualauthority, Howard, 399 Mass. at 590. In Howard, for example,the court rejected the argument that a town chairwoman's scope ofemployment was determined solely by reference to her officialduties as set forth in the town's by-laws: "We decline to adoptsuch a restrictive interpretation of the term for the purposes of G.L. c. 258, §9.5 Moreover, and contrary to the plaintiffs' assertion,it is ordinarily the actual and customary, rather than formallydescribed, duties which determine scope of employment." Id.;see also Giacomuzzi v. Klein, 324 Mass. 689 (1949) (employee'sunauthorized act of inviting dry cleaning customer to shop's backroom to identify clothing was within the employee's scope ofemployment); cf. Pelletier v. Federal Home Loan Bank of SanFrancisco, 968 F.2d 865, 875 (9th Cir. 1992) (holding that thedistrict court, in granting the government's motion to dismissFTCA claims, incorrectly applied "scope of authority" testinstead of the broader "scope of employment" test). Forbidden andcriminal acts may also be within the scope of employment. See,e.g., Commonwealth v. Jerez, 390 Mass. 456, 462 (1983) (diplomatwho assaulted police officer while diplomat was en route to anofficial function was acting within the scope of his"employment"); Manning v. Grimsley, 643 F.2d 20, 24-25 (1stCir. 1981) (reasonable jury could have found that pitcher whothrew baseball at heckling crowd, thereby injuring the plaintiff,was acting within the scope of his employment); Hobart v.Cavanaugh, 353 Mass. 51, 52-53 (1967) (employee's assault andbattery of garage owner who had failed to fill employer's truckswith gasoline was within the scope of his employment); Rego v.Thomas Bros. Corp., 340 Mass. 334, 335 (1960) (in light ofevidence indicating that employee assaulted plaintiff while inperformance of his duty for the employer, the employer's motionfor a directed verdict in the personal injury action arising fromthe assault was properly denied); Levi v. Brooks, 121 Mass. 501, 504 (1877)(master who orders servant to remove furniture from home of adebtor is liable for servant's willful assaults committed duringthe execution of the order and in furtherance thereof; "if theacts were done in the execution of the authority given by themaster, and for the purpose of performing what he had directed,he was responsible, whether the wrong done was occasioned bynegligence or by a wanton and reckless purpose to accomplish hisbusiness in an unlawful manner"); see also RESTATEMENT (SECOND)OF AGENCY § 230 (1958) ("An act, although forbidden, or done in aforbidden manner, may be within the scope of employment."); id.§ 231 ("An act may be within the scope of employment althoughconsciously criminal or tortious.").

Here, the government suggests that the scope of an FBI agent'semployment is limited to the duties enumerated in applicablefederal statutes and regulations6 and that the conduct atissue was not "of the kind that the agents were hired to perform"because "FBI agents are not hired to protect informants fromindictment or prosecution for murder." Mem. Supp. U.S. Mot.Dismiss at 18-19. The government maintains that "[n]ot only isthe conduct outside the scope because the agents lack authorityto immunize the informants, the conduct is such a startling andunexpected deviation from duty that it would be unfair to tax theagent's employer with the cost of its occurrence." Id. at 20.

While it is true, as the government argues, that in Flemmi v.United States, 225 F.3d 78, 86 (1st Cir. 2000), the FirstCircuit held that the FBI's alleged promises of immunity were not binding on the government, that case hardly resolves the questionof whether the agents here were acting within the scope of theiremployment in their dealings with Flemmi and Bulger during aperiod comprising at least two decades. The heart of theplaintiff's claims is that it was a longstanding "actual andcustomary," practice, Howard, 399 Mass. at 590, for agents inthe FBI's Boston office to protect Flemmi and Bulger frominvestigation and prosecution. The amended complaint is repletewith allegations containing examples of instances where agentswere directed or allowed to take measures protective of Flemmiand Bulger for the purpose of maintaining them as valuablesources of information in the FBI's effort to prosecute membersof LCN. The allegations include assertions that agents ignored —and even permitted — criminal activities of Flemmi and Bulgerthat foreseeably could result in the murder of third persons. Thefact that later exposure of this conduct may have "embarrassedthe agency, damaged the informant program, and thwarted effortsto carry out law enforcement responsibilities," U.S. Reply Br. at7, does not establish that, at the time, the agents were notacting in furtherance of the FBI's work.

2. Circumstances Where a Private Person Would Be Liable

The government also attempts to whittle away the plaintiff'sclaims by arguing that, because Massachusetts law does not imposea duty on a private person to prevent criminal acts by anotherperson, the plaintiff's allegations that the United States failedto warn or protect Davis are not actionable under the FTCA. See28 U.S.C. § 1346(b). As it did with the "scope of employment"test, the government frames the duty question much too narrowly.While it may be true that in general, Massachusetts law doesnot impose a duty on a private person to "protect another fromthe wrongful or criminal acts of a third party," Mem. Supp. U.S.Mot. Dismiss at 26, the rule cannot be applied as categoricallyas the government suggests. The government argues that the proposition that it has no dutyto warn or protect someone from the criminal acts of a thirdparty is a subset of an even more general rule that "[t]he factthat the actor realizes or should realize that action on his partis necessary for another's aid or protection does not of itselfimpose a duty to take such action." Id. (quoting RESTATEMENT(SECOND) OF TORTS § 314 (1965) ("§ 314")). To be sure, there arecases in which Massachusetts courts have found § 314 to beapplicable, see, e.g., Pridgen v. Boston Hous. Auth.,364 Mass. 696, 709 (1974); Warren H. Bennett, Inc. v. Charlestown Sav.Bank, 3 Mass. App. Ct. 753, 753 (1975); see also Carrier v.Riddell, Inc., 721 F.2d 867, 869 (1st Cir. 1983); Choy v. FirstColumbia Mgmt., Inc., 676 F. Supp. 28, 29 (D. Mass. 1987). Butto the extent that these cases reinforce § 314, they also implythat Massachusetts recognizes the exceptions to the general ruleof § 314.7 Section 321(1) of the RESTATEMENT (SECOND) OFTORTS (1965), one of these carveouts, provides that "[i]f theactor does an act, and subsequently realizes or should realizethat it has created an unreasonable risk of causing physical harmto another, he is under a duty to exercise reasonable care toprevent the risk from taking effect," id., and Massachusettslaw has embraced the principle, if not the actual text, of thisrule, Commonwealth v. Levesque, 436 Mass. 443, 449-50 (2002)("Although we have yet to recognize explicitly § 321 as a basisfor civil negligence, we have expressed agreement with its underlyingprinciple. It is consistent with society's general understandingthat certain acts need to be accompanied by some kind of warningby the actor." (citation omitted)). In Levesque, the court heldthat the defendants could be held criminally liable for thedeaths of six firefighters who perished while fighting awarehouse blaze that the defendants had accidentally started, butfailed to control or report to authorities. The court said: Where a defendant's failure to exercise reasonable care to prevent the risk he created is reckless and results in death, the defendant can be convicted of involuntary manslaughter. Public policy requires that "one who creates, by his own conduct . . . a grave risk of death or injury to others has a duty and obligation to alleviate the danger." We are not faced with the situation of a mere passerby who observes a fire and fails to alert authorities; the defendants started the fire and then increased the risk of harm from that fire by allowing it to burn without taking adequate steps either to control it or to report it to the proper authorities.Id. at 450-51 (alteration in original) (quoting People v.Kazmarick, 417 N.Y.S.2d 671, 674 (N.Y. County Ct. 1979)). If anindividual can be criminally liable for failing to mitigate ahazard of his own creation that results in death, it follows thathe also can be subject to civil liability in those circumstances.See, e.g., Mullins v. Pine Manor College, 389 Mass. 47, 52 n. 8(1983) (explaining that because the policy of an all-femalecollege permitting male guests to stay overnight in women'sdormitory created a foreseeable risk that unwelcome men would notbe detected as intruders, the college had to take "reasonablemeasures" to guard against that risk);8 id. at 62 ("The act of a third party does not excuse the firstwrongdoer if such act was, or should have been, foreseen.").

Furthermore, Massachusetts law would likely impose a duty on aprivate person to protect another from the wrongful acts of thirdparties based "on the existence of a special relationship betweenthe negligent person and the person or entity on whom it issought to impose liability." Mosko v. Raytheon Co.,416 Mass. 395, 400-01 (1993) (acknowledging doctrine but finding that itdid not apply to impose liability on employer for injuries causedby employee's intoxicated driving following an employer-sponsoredholiday party); see also RESTATEMENT (SECOND) OF TORTS § 319(1965) ("One who takes charge of a third person whom he knows orshould know to be likely to cause bodily harm to others if notcontrolled is under a duty to exercise reasonable care to controlthe third person to prevent him from doing the same."); id. §315 ("There is no duty so to control the conduct of a thirdperson as to prevent him from causing physical harm to anotherunless (a) a special relation exists between the actor and thethird person which imposes a duty upon the actor to control thethird person's conduct. . . .").9 A reasonable inferencefrom the allegations of the amended complaint is that the UnitedStates had a "special relationship" with Flemmi and Bulger and aconsequent duty to the general public to control the actions ofthese informants. Another theory of liability recognized inMassachusetts law and applicable to the plaintiff's claimsagainst the government here is that of joint liability orliability arising from the aiding and abetting of another in a wrongful act: "For harmresulting to a third person from the tortious conduct of another,a person is liable if he . . . (b) knows that the other's conductconstitutes a breach of duty and gives substantial assistance orencouragement to the other. . . ." Nelson v. Nason,343 Mass. 220, 222 (1961) (drag racing teenager liable for deaths resultingfrom crash between automobile driven by plaintiff's decedent andanother car) (alterations in original) (quoting RESTATEMENT(FIRST) OF TORTS § 876(b) (1939));10 see alsoKabatchnick v. Hanover-Elm Bldg. Corp., 331 Mass. 366, 368(1954) ("One who has sustained an injury in person . . . by awrong committed in which several persons have activelyparticipated may bring an action against one or more of them."),cited with approval in Shantigar Found. v. Bear MountainBuilders, 441 Mass. 131, 141 (2004); McGrath v. Sullivan,303 Mass. 327, 331 (1939) (defendant who purposefully affordedco-defendant opportunity to have affair with plaintiff's wife wasjointly liable for tortious interference with plaintiff's maritalrights); Brown v. Perkins, 83 Mass. 89 (1861) (jury instructionthat defendants could not be civilly liable "as principals foraiding and assisting" a trespass "unless they stood in suchrelation [to the trespassors] as would naturally enable them toexercise some authority, control or influence over the[trespassors]" was in error; the "true rule" is that "any personwho is present at the commission of a trespass, encouraging orexciting the same by words, gestures, looks, or signs, or who inany way or by any means countenances or approves the same, is inlaw deemed to be an aider and abettor, and liable asprincipal").11

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), citedwith approval in Alberts v. Devinek, 395 Mass. 59, 71 (1985), isa helpful example of how this rule might apply to the plaintiff'sclaims. In Halberstam, the court applied the rule inRESTATEMENT (SECOND) OF TORTS § 876(b) (1979)12 to holdthat a woman could be civilly liable for a murder her boyfriendcommitted while burglarizing a home. Id. at 488. Although thewoman had not been present at the scene of the crime, she wasnonetheless liable for the murder because she had helped herboyfriend run the continuing criminal enterprise he was advancingat the time he killed the victim. Id. at 488. The criminalenterprise consisted of burglarizing homes, selling stolen goods,and money laundering, among other things. Although the woman didnot burglarize homes, she played a role in effectuating the "clearly required expeditiousand unsuspicious disposal of the goods." Id. Even though her"own acts were neutral standing alone, they must be evaluated inthe context of the enterprise she aided." Id. Morever,"although the amount of assistance [the woman] gave [herboyfriend] may not have been overwhelming as to any givenburglary in the five-year life of this criminal operation, itadded up over time to an essential part of the pattern."Id.13

In sum, there are several theories of liability underMassachusetts law by which the United States might be liable tothe plaintiff for failing to warn or protect Davis from thecriminal activities of Flemmi and Bulger. One can reasonablyinfer from the amended complaint that the course of dealingsbetween the United States on the one hand and with Flemmi andBulger on the other, created a risk of danger to Davis and aconcomitant duty to warn or protect Davis from that danger. Thealleged relationship the government had with Flemmi and Bulgerwas a "special relationship" within the meaning of tort law,creating a duty owed to the general public to control them. Inallegedly permitting Flemmi and Bulger to commit crimes withimpunity and not warning the foreseeable victims of those crimes,the government gave Flemmi and Bulger "substantial assistance" inmurdering Davis. While discovery may show that the facts will notsupport any of these theories of liability, I cannot say nowthat, based on the plaintiff's allegations, it is beyond doubtthat a private individual in a position analogous to that of theUnited States would not be liable for failing to warn or protecta potential victim of crime like Davis. 3. Discretionary Function Exception

The government also argues that the plaintiff's claims based onthe government's failure to warn or protect Davis, should bedismissed because governmental decisions with respect toprotecting the public fall within the so-called discretionaryfunction exception. As explained earlier, the discretionaryfunction exception bars claims "based upon the exercise orperformance or the failure to exercise or perform a discretionaryfunction or duty on the part of a federal agency or an employeeof the Government, whether or not the discretion involved beabused." 28 U.S.C. § 2680(a).

Although later in this litigation it may be necessary tonavigate the inlets of the discretionary function exception, atthis stage of the proceedings I can rule on the applicability ofthis defense by reference to a single proposition. Where a partyhas pleaded that a government employee's conduct was"unconstitutional, proscribed by statute, or exceed[ed] the scopeof [the agent's] authority," the conduct does not fit within thediscretionary function exception because "a federal officialcannot have discretion to behave unconstitutionally or outsidethe scope of his delegated authority." Thames Shipyard & RepairCo. v. United States, 350 F.3d 247, 254 (1st Cir. 2003) (quotingin part Myers & Myers, Inc. v. United States Postal Serv.,527 F.2d 1252, 1261 (2d Cir. 1975)). As explained in the precedingsection, under state law the alleged conduct of the FBI inthwarting the investigation and prosecution of Flemmi and Bulgergave rise to a duty on the part of agents to alleviate thedangers resulting from the FBI-sponsored freedom Flemmi andBulger had to commit crimes. If indeed the FBI agents were actingoutside the scope of their authority (but not outside the scope of their employment) whenthey undertook various measures to prevent Flemmi and Bulger frombeing investigated or prosecuted, then those actions werenon-discretionary.


For the foregoing reasons, I denied the United States' motionto dismiss by my order of March 31, 2004.


1. After my decisions in Bennett, Donahue, and Wheeler andafter the parties in this case briefed the statute of limitationsissue, the First Circuit dispelled any remaining doubt that thediscovery rule applies to all FTCA claims — not just those formedical malpractice. Skwira v. United States, 344 F.3d 64,74-75 (1st Cir. 2003); see also Cascone v. United States,370 F.3d 95, 104 (1st Cir. 2004).

2. In addition, the government argues that the claims based onthe government's alleged failure adequately to investigateDavis's death should also be dismissed under the discretionaryfunction exception. Counts I through VI are for the "kidnapping,torture, and wrongful death of Debra Davis." Amend. Compl. ¶¶237, 240, 245, 249, 262, 265. It is factually impossible,however, for the government's conduct after Davis's death to havecontributed to her murder, and any allegations in counts Ithrough VI pertaining to government responsibility for eventsoccurring after the alleged murder are necessarily beyond thescope of any cognizable claim against the United States.Consequently, I will not address whether the discretionaryfunction exception applies to this aspect of the plaintiff'sclaims. That some allegations are insufficient in themselves tostate a claim does not mean, however, the claim fails as awhole.

3. The sole issue in this interlocutory appeal was thedistrict court's denial of the motions of the individualdefendants to dismiss constitutional claims based on qualifiedimmunity.

4. For another example of a court declining to piecemeal afactually complicated theory of causation on a motion to dismiss,see Liuzzo v. United States, 508 F. Supp. 923 (E.D. Mich.1981). In Luizzo, the plaintiffs sought damages for the deathof their mother, who was killed by gunfire coming from a caroccupied by members of the Ku Klux Klan as she traveled inAlabama, participating in the 1965 Selma to Montgomery votingrights march. The plaintiffs sued the government under the FTCA,alleging that numerous instances of misconduct by the FBI in itsuse of an informant who was in the Klan car — including failingproperly to train and supervise the informant and permitting theinformant to participate in violent acts — caused the mother'sdeath. On its motion to dismiss, the government argued that theplaintiffs' claims were barred because "the allegations made byplaintiffs all related to the exercise of discretionary judgmentby the F.B.I." Id. at 930. The government asked the court to focus its attention with regard to this issue on only two aspects of [the informant]'s involvement in the F.B.I. [—] to the authorization he received on the morning of the murder from his contact agent to go along on the mission, and to the decision made by high officials to utilize informants to penetrate the Klan secrecy.Id. The court refused to adopt the government's formulation ofthe relevant facts and legal theories: "[T]he court declines toaccept this invitation for it is at once both too narrow and toobroad, and would require that the court overlook specificallegations in the complaint concerning activities which are notbarred by the discretionary function exception." Id. Pooler v. United States, 787 F.2d 868 (3d Cir. 1986),illustrates the other side of the same coin. In Pooler, theplaintiffs sought recovery under the FTCA for unlawful arrest andprosecution resulting from an allegedly substandard investigationinto narcotics sales at a government hospital. In affirming thedistrict court's dismissal of the case on the basis of thediscretionary function exception, the court pointed out thatdismissal might not have been proper if the plaintiffs' theory ofcausation had included allegations beyond those of a deficientinvestigation that made use of unreliable informants: If the issue was the use of an undercover agent or informant whose known tendencies toward violence suggested a risk of physical harm either to the targets of an investigation or to all bystanders, the case might well be different. In addition, if the complaint were that agents of the government in the course of an investigation had violated constitutional rights or federal statutes, the outcome would be different since federal officials do not possess discretion to commit such violations. But when the sole complaint is addressed, as here, to the quality of the investigation as judged by its outcome, the discretionary function should, and we hold, does apply.Id. at 871 (emphasis added).

5. M.G.L. ch. 258, § 9 permits public employers to "indemnifypublic employees from personal financial loss and expenses . . .arising out of any claim, action, award, compromise, settlementor judgment by reason of an intentional tort, or by reason of anyact or omission which constitutes a violation of the civil rightsof any person." Id. (1984). The Massachusetts Tort Claims Act,M.G.L. ch. 258, "is modeled closely on the Federal Tort ClaimsAct." Howard, 399 Mass. at 589.

6. The government specifically mentions making arrests,carrying firearms, serving warrants and executing seizures underwarrants, uncovering drug law violations, collecting fingerprintcards and identification records, conducting personnelinvestigations, conducting law enforcement training programs, andoperating the National Crime Information Center and the FBIlaboratory as being among the duties of an FBI agent. Mem. Supp.U.S. Mot. Dismiss at 18.

7. See RESTATEMENT (SECOND) OF TORTS § 314 cmt. a (1965)("The general rule stated in this Section should be read togetherwith other sections which follow. Special relations may existbetween the actor and the other, as stated in § 314 A, whichimpose upon the actor the duty to take affirmative precautionsfor the aid or protection of the other. The actor may havecontrol of a third person, or of land or chattels, and be under aduty to exercise such control, as stated in §§ 316-320. Theactor's prior conduct, whether tortious or innocent, may havecreated a situation of peril to the other, as a result of whichthe actor is under a duty to act to prevent harm, as stated in §§321 and 322.").

8. In Mullins, the court upheld a jury verdict that acollege was liable for the injuries a female student sufferedwhen she was raped on campus. Although the college relied on §314 in arguing that it did not have a duty to protect studentsagainst the criminal acts of third parties, the court concludedthat "this rule has little application to the circumstances ofthis case." 389 Mass. at 50. Instead, the court held that thecollege might be liable in light of the evidence either that itwas the customary practice of reasonable colleges to take stepsto protect resident students from the criminal acts of thirdparties, or that the college had voluntarily undertaken a duty toprotect its students. Id. at 50-51. The court rejected thecollege's argument that the rape was not foreseeable and upheldthe jury's verdict that the college had breached that duty bypermitting deficiencies in the college's security system. 62.

9. The Supreme Judicial Court cited RESTATEMENT (SECOND) OFTORTS § 315(a) (1965) ("§ 315(a)") with approval in Jean W. v.Commonwealth, 414 Mass. 496, 513 (1993) and was prepared toapply it to claims brought under the Massachusetts Tort ClaimsAct. Before the ruling in Jean W. was effective, thelegislature abrogated Jean W. by enacting M.G.L. ch.258, § 10(h)-(j), greatly limiting the circumstances under which publicemployees can be liable for failing to provide police protection.There is no indication, however, that § 315(a) is not a basis forliability of a private person or entity.

10. Section 876 of the RESTATEMENT (FIRST) OF TORTS (1939) inits entirety reads: § 876. Persons Acting in Concert For harm resulting to a third person from the tortious conduct of another, a person is liable if he (a) orders or induces such conduct, knowing of the conditions under which the act is done or intending the consequences which ensue, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

11. The reporter's notes to both the RESTATEMENT (FIRST) OFTORTS § 876 (1939) and the RESTATEMENT (SECOND) OF TORTS § 876(1979) cite Brown v. Perkins as an example of the meaning of"encouragement."

12. Section 876(b) of the RESTATEMENT (SECOND) OF TORTS (1979)is essentially identical to the 1939 version of the same section.See supra note 10.

13. In determining whether the woman had given "substantialassistance" to her boyfriend, the Halberstam court considered"the nature of the act encouraged; the amount [and kind] ofassistance given; the defendant's absence or presence at the timeof the tort; [her] relation to the tortious actor; and thedefendant's state of mind." 705 F.2d at 483-84 (alteration inoriginal) (citing RESTATEMENT (SECOND) OF TORTS § 876(b) cmt. d(1979)).

Back to top