RAKES v. U.S.

352 F.Supp.2d 47 (2005) | Cited 9 times | D. Massachusetts | January 3, 2005

MEMORANDUM AND ORDER

This case consolidates two separate suits, essentially allegingthe same misconduct. Julie Rakes Dammers ("Dammers"), her formerhusband Stephen Rakes ("Rakes"), and other members of the Rakesfamily brought suits against the United States of America (the"United States"), the Federal Bureau of Investigation (the"Bureau"), Federal Bureau of Investigation agents John J.Connolly, Jr. ("Connolly") and John M. Morris ("Morris"), andothers. Dammers and the Rakes family claim that Bureau agentscultivated special relationships with members of the criminalorganization known as the "Winter Hill Gang" (the "Gang") for useas informants. While nurturing their relationships withinformants James J. "Whitey" Bulger ("Bulger") and Stephen J."The Rifleman" Flemmi ("Flemmi"), in particular, the plaintiffsargue that the United States and its agents protected Bulger andFlemmi from investigation, arrest, and prosecution, and leakedconfidential law enforcement information to Bulger. Theplaintiffs contend that these acts, allegedly carried out incontravention of Bureau rules and regulations regarding theproper handling of informants, emboldened Bulger and Flemmi tocommit criminal acts and led to the Gang's 1984 extortion ofRakes and Dammers's liquor store and the threats made against theRakes family. Dammers and the Rakes family have put forth, inter alia,various claims under the Federal Tort Claims Act (the "FTCA"),28 U.S.C. §§ 1346(b), 2671-80, including theft and conversion,intentional torts, negligence, intentional and negligentinfliction of emotional distress, loss of parental and spousalconsortium, and loss of prospective business relationships. TheUnited States has moved for summary judgment on the plaintiffs'FTCA claims [Doc. No. 195], and the plaintiffs have opposed themotion [Doc. No. 236] ("Pls.' Opp'n").1 The United Stateshas also filed a renewed motion to dismiss the FTCA claims astime-barred under the FTCA's two-year statute of limitations,28 U.S.C. § 2401(b). [Doc. No. 179]. The United States contends thatRakes and Dammers's FTCA claims accrued before the cut-off dateof May 11, 1999. Rakes and Dammers separately oppose the renewedmotion to dismiss, arguing that their claims accrued on September15, 1999, the day Judge Wolf issued his opinion in UnitedStates v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999) [Doc.No. 234]; [Dammers Doc. No. 164]. On November 16, 2004, thisCourt heard oral arguments on both of the United States' motions.After careful reflection, the Court now addresses each motion inturn. I. UNITED STATES' MOTION FOR SUMMARY JUDGMENT ON RAKES ANDDAMMERS'S FTCA CLAIMS

The following facts do not appear to be in dispute for purposesof this motion for summary judgment. Bulger and Flemmi weremembers of the Winter Hill Gang, a criminal organization engagedin activities including murder and extortion. Pls.' Opp'n at2.2 From 1967 to 1990, Bulger and Flemmi also acted asFBI informants, providing valuable information on La Cosa Nostra.Id. at 3. They were handled by FBI Special Agent John Connollyand Supervisory Special Agent John Morris, the supervisor incharge of the Organized Crime Squad of the Boston Office of theFBI. Id. At the time Connolly officially opened Bulger as aninformant in September 1975, Bulger had a criminal background.Def.'s Mem. [Doc. No. 196] at 3. Likewise, at the time Connollyofficially re-opened Flemmi as an informant in September 1980,Flemmi had a criminal background and was suspected of beinginvolved in murder. Id. During their years as confidentialinformants for the FBI, Bulger and Flemmi were involved innumerous murders, as described in United States v. Salemme,91 F. Supp. 2d 141, and United States v. Flemmi,195 F. Supp. 2d 243 (D. Mass. 2001) (Wolf, J.). Def.'s Mem. at 3. Prior to May 1982, Connolly and Morris met socially with Bulgerand Flemmi. Id. They also received gifts from Bulger and Flemmibetween 1976 and 1994. Id. In 1976, for instance, Connollyimproperly accepted a diamond ring from Bulger and Flemmi. Id.Bulger and Flemmi gave Morris a case of wine in late 1981 orearly 1982, $1,000 in spring 1982 and again in late 1982 or early1983, and $5,000 in 1986 or 1987. Id.

Plaintiffs Rakes and Dammers opened a liquor store in SouthBoston in December 1983. Id. at 2. Within approximately twoweeks of opening, Bulger, Flemmi, and defendant Kevin Weeks("Weeks") extorted the store from Rakes and Dammers in exchangefor $67,000 and promises of more money. See id. Dammerscontacted her uncle, Boston Police Detective Joseph Lundbohm("Lundbohm"), for help, and he said that he would call a friendat the FBI for her. Id. Lundbohm contacted Connolly regardingthe extortion, and Connolly responded that unless Rakes andDammers were willing to wear a wire during their meetings withBulger, the FBI was unlikely to intervene. Id. at 2-3. Connollynever documented his conversation with Lundbohm or investigatedRakes and Dammers's allegations of extortion. Id. at 3.Instead, Connolly informed Bulger of his conversation withLundbohm. Id. In late 1994 or early 1995, Connolly leaked toBulger and Flemmi that they had been indicted for murder. Id.at 3-4. This tip allowed Bulger to flee and to evade arrest tothis day. Id. at 4. Based on the foregoing facts, the United States argues that itshould be granted summary judgment on the plaintiffs' FTCA claimsbecause (1) Connolly and Morris's conduct was outside the scopeof their employment, Def.'s Mem. at 4; (2) the discretionaryfunction exception bars the plaintiffs' claims, id. at 9; and(3) the plaintiffs' claims would fail under Massachusetts tortlaw, id. at 16.

Summary judgment is warranted if, after reviewing the facts inthe light most favorable to the nonmoving party, no genuineissues of material fact remain. Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 254 (1986); Fed.R.Civ.P. 56(c). A"genuine" issue of fact is one that a reasonable jury, on therecord before the court, could resolve in favor of either party.Anderson, 477 U.S. at 251, 254. A fact is material when it"might affect the outcome of the suit under the governing law."Id. at 248; Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90(1st Cir. 1993). In making its determination, the court must viewthe evidence in the light most favorable to the non-moving partyand draw all reasonable inferences in its favor. Id. The movanthas the initial burden of production, which it can meet either byoffering evidence to disprove an element of the plaintiff's caseor by demonstrating an "absence of evidence to support thenonmoving party's case." Celotex Corp. v. Catrett,477 U.S. 317, 325 (1986). Once the movant has met its burden, thenon-moving party must "go beyond the pleadings, and by [its] ownaffidavits, or by the depositions, answers to interrogatories, and admissionson file, designate specific facts showing there is a genuineissue for trial." Id. at 323-24 (internal quotation marksomitted). Guided by this standard of review, the Court examineseach of the United States' arguments for summary judgment.

A. Scope of Employment

The FTCA grants jurisdiction for claims that are "caused by thenegligent or wrongful act or omission of any employee of thegovernment, while acting within the scope of his office oremployment" under state law. 28 U.S.C. § 1346(b). UnderMassachusetts law, conduct is within the scope of employment if(1) "it is of the kind [the agent] is employed to perform;" (2)"it occurs substantially within the authorized time and spacelimits;" and (3) "it is motivated, at least in part, by a purposeto serve the employer." Wang Labs., Inc. v. BusinessIncentives, Inc., 398 Mass. 854, 859 (1986). "The scope of anemployee's employment," according to the Supreme Judicial Court,"is not construed restrictively." Howard v. Town ofBurlington, 399 Mass. 585, 590 (1987).

The United States argues that the plaintiffs' FTCA claims failto satisfy the first prong of the Wang test because Connollyand Morris's conduct was not of the kind they were employed toperform: The disclosure of a confidential informant's name to criminals, and protecting them from investigation and prosecution, are not activities of the kind that FBI agents are hired to perform. "The FBI Manual requires agents to exercise constant care to ensure that an informant's identity is not disclosed, whether intentionally or inadvertently." McIntyre v. United States, 367 F.3d 38, 54 (1st Cir. 2004) (quoting United States v. Salemme, 91 F. Supp. 2d 141, 150 (D. Mass. 1999)). . . . Connolly's release of any informant's name, or other sensitive law enforcement information, to Bulger and Flemmi would have been wholly outside any authority delegated to him. This conduct does not further the institutional goals of the FBI; it is antithetical to them.Def.'s Mem. at 5. The United States contends that Connolly andMorris were "engaged in an independent and private purpose of[their] own and not pursuing the business of [their] employer."Id. at 6.

Rakes and Dammers argue that the United States' "selfservingconclusion answers the wrong question" because "[t]he issue isnot whether Connolly and Morris were authorized to commit theirwrongful acts, but instead whether such acts were incidental totheir authorized duties." Pls.' Opp'n at 5-6 (citing Howard,399 Mass. at 590 (ruling that "anything which is reasonablyregarded as incidental to the work specifically directed"satisfies the first prong of the scope of employment test)); seealso Aversa v. United States, 99 F.3d 1200, 1212 (1st Cir.1996) (applying New Hampshire's scope of employment test, whichis virtually identical to that of Massachusetts, and holding that"[a]lthough an employee's intentionally tortious act was notauthorized, it may nonetheless have been within the scope ofemployment if it was `incidental to authorized duties'").Accordingly, Rakes and Dammers argue that "the actions [Connolly and Morris] took to protect Bulger and Flemmi so as to maintaintheir value as informants were incidental to their authorizedduties of handling informants." Pl.'s Opp'n at 6. "[T]he factthat the agents abused their authority by releasing sensitive lawenforcement information to Bulger and Flemmi," contend Rakes andDammers, "does not relieve the government of liability." Id.(citing Aversa, 99 F.3d at 1212 (holding that a AUSA's conduct,while "tortious and contrary to his employer's policies andrules," was within the scope of his employment)).

Essentially, the United States seems to argue that becauseConnolly and Morris's conduct was contrary to certain FBI rulesand regulations, they must have been acting outside the scope oftheir employment. This argument has a hollow ring. Were itaccepted, any employer who prescribes that "all employees mustact with due care in performing their duties" would be shieldedfrom all liability for negligence. This is not the law. Connollyand Morris were hired, at least in part, to handle confidentialinformants. Soliciting valuable information from Bulger andFlemmi about La Cosa Nostra and guarding their identities as TopEchelon Informants are part of the job. In carrying out theirresponsibilities as handlers, Connolly and Morris allegedlyviolated various FBI rules and regulations. These violations bythemselves, however, are not enough to support the conclusionthat Connolly and Morris's conduct in protecting their valued informants was not incidental to theiroverall duties as handlers.

The United States next argues that Connolly and Morris'sconduct was driven by an "independent and private purpose,"Def.'s Mem. at 6, and therefore does not satisfy the third prongof the Wang test which requires that the conduct "is motivated,at least in part, by a purpose to serve the employer." WangLabs., 398 Mass. at 859. In support of its argument, the UnitedStates points to evidence that Connolly and Morris received giftsfrom Bulger and Flemmi and interacted with them socially. Def.'sMem. at 3, 8. Under Massachusetts law, "if an employee acts frompurely personal motives . . . in no way connected with theemployer's interests," he is not acting within the scope of hisemployment. Pinshaw v. Metropolitan Dist. Comm'n,402 Mass. 687, 694-95 (1988) (emphasis added). The United States assertsthat "[t]he only individuals who would have benefitted from theegregious misconduct at issue were Bulger, Flemmi, Connolly, andJohn Morris — not the FBI." Def.'s Mem. at 8. This blanketconclusion is unconvincing. There is some evidence that duringtheir tenure as Top Echelon Informants, Bulger and Flemmiprovided the FBI with valuable information regarding La CosaNostra in Boston. See Salemme, 91 F. Supp. 2d at 203 (quotingConnolly as writing "Information from [Flemmi] is currently beingutilized in the preparation of an affidavit in support of . . .targeting [98 Prince Street], which is the highest priority organized crime investigation in [Washington, D.C.]. In additionto the Angiulo case, this informant is one of the two primaryinformants who will furnish the majority of probable cause . . .targeting [the] (#2 man in the Boston [La Cosa Nostra])"); id.(quoting Morris as writing "[Bulger] is one of the most highlyplaced and valuable informants in the Boston Division. . . . Theclosing of an informant of this caliber would deal a serious blowto the [Organized Crime Program] of the Boston Division"(emphasis omitted)). Given that Rakes and Dammers have presentedsome evidence that Connolly and Morris's protection of Bulger andFlemmi aided the FBI's pursuit of La Cosa Nostra, it would beimproper for this Court to conclude at the summary judgment stagethat Connolly and Morris were acting "from purely personalmotives . . . in no way connected with the employer's interests."Pinshaw, 402 Mass. at 694-95.

Finally, the United States argues that Rakes and Dammers'sclaims fail under the third prong of Wang because Connolly andMorris's conduct was so egregious that it could not possibly havebeen motivated by an intent to further their employer's business.Def.'s Mem. at 7 (citing International Bd. of Police Officers,Local 433 v. Memorial Press, 31 Mass. App. Ct. 138, 141 (1991)("[T]he fact that an act is done in an outrageous or abnormalmanner has value in indicating that the servant is not actuatedby an intent to perform the employer's business.")). While thedegree of outrageousness of an employee's conduct may tend to prove or disprove the extent to which the conduct was motivatedby a desire to serve his employer, one could reasonably inferfrom the evidence in this case that Connolly and Morris'sconduct, while deeply disturbing, was not so "outrageous orabnormal," Def.'s Mem. at 7, to fall utterly outside the scope ofemployment. The cases cited by the United States are factuallydistinguishable and do not undermine this result. See id. at8-9 (citing Timpson v. Transamerica Ins. Co., 41 Mass. App. Ct. 344,347-50 (1996) (rejecting the argument that afootball player was acting in the interest of his employer when hesexually harassed a reporter in the team locker room) and Doev. Purity Supreme, Inc., 422 Mass. 563, 568 (1996) (rejectingthe argument that a grocery store manager was acting in the scopeof his employer when he raped and sexually assaulted a fellowemployee)).

Overall, taking all factual inferences in favor of Rakes andDammers, the Court rejects the United States' argument thatConnolly and Morris's conduct was outside the scope ofemployment.

B. The Discretionary Function Exception

The United States contends that Rakes and Dammers's FTCA claimsfail because they are based on conduct that falls within thediscretionary function exception. Def.'s Mem. at 9. The FTCA bars"[a]ny claim based upon . . . the exercise or performance or thefailure to exercise or perform a discretionary function or dutyon the part of a federal agency or an employee of the Government, whether or not the discretion involved beabused." 28 U.S.C. § 2680(a). To determine whether claims fallwithin the discretionary function exception to the FTCA, courtsmust apply a two-step test: (1) "First, an inquiring court must identify the conduct that allegedly caused the harm" and (2) "Then, in determining whether Congress sought to shelter that sort of conduct from tort liability, the court must ask two interrelated questions: (1) Is the conduct itself discretionary? (2) If so, does the exercise of discretion involve (or is it susceptible to) policy-related judgments?"Muniz-Rivera v. United States, 326 F.3d 8, 15 (1st Cir.2003).

Before conducting its analysis, the United States frames Rakesand Dammers's claims as being based on "(a) the FBI's employmentof informants with criminal histories; (b) the FBI's failure toinvestigate their extortion; [and] (c) the FBI's failure toprotect Plaintiffs from being extorted." Def.'s Mem. at 9(alterations omitted). This is an unfair characterization of thebasis of Rakes and Dammers's FTCA claims. As explained in theiropposition memorandum, Rakes and Dammers's "claims are predicatedon a series of actions by FBI agents Connolly, Morris and othersthat violated mandatory rules and regulations for theirhandling of Bulger and Flemmi — rules and regulations that wereput in place to avoid the very harm inflicted upon the communityof South Boston in general and Plaintiffs in particular." Pls.'Opp'n at 9. In other words, Connolly and Morris's allegedviolations of these rules and regulations allegedly caused the harm to Rakes and Dammers. This Court thusundertakes its analysis on Rakes and Dammers's own constructionof their FTCA claims, rather than the United States' self-servingcharacterization.

In determining whether the discretionary function exceptionapplies, the Court must first identify "the conduct thatallegedly caused the harm." Muniz-Rivera, 326 F.3d at 15. Rakesand Dammers allege that the conduct that caused their harm"consists of a pattern of intentional and reckless wrongdoing bycertain FBI agents, and the failure of their superiors toreasonably supervise them, all in violation of mandatory rulesand regulations." Pls.' Opp'n at 10-11. While their case fordirect causation would likely be strengthened by making a morestraightforward "failure to investigate/failure to protect"argument, Rakes and Dammers choose to make a more attenuatedargument that Connolly and Morris's violations of mandatory rulesand regulations caused them harm. This strategic move may maketheir FTCA claims more difficult to prove at trial, but forpresent purposes, it strengthens their argument that thediscretionary function exception does not apply.

Next, the Court must ask "(1) Is the conduct itselfdiscretionary? (2) If so, does the exercise of discretion involve(or is it susceptible to) policy-related judgments?"Muniz-Rivera, 326 F.3d at 15. Conduct is discretionary if it"is a matter of choice for the acting employee." Berkovitz v.United States, 486 U.S. 531, 536 (1988). "[C]hallenged conduct is notdiscretionary if a federal statute, regulation, or policy specificallyprescribes a course of action for an employee to follow." Heinrich exrel. Heinrich v. Sweet, 62 F. Supp. 2d 282,324 (D. Mass. 1999), rev'd on other grounds, 308 F.3d 48(1st Cir. 2002).

Rakes and Dammers argue that "[t]he FBI rules and regulationsfor handling informants as set forth in the Levi Memorandum, FBIManual and revised FBI Guidelines [hereinafter "MIOG"], . . .left no room for Defendants to exercise choice or judgmentrelative to undertaking the conduct that caused Plaintiffs'harm." Pls.' Opp'n at 11. Rakes and Dammers give the followingexamples: (1) "The handling agent must admonish informants against participation in planning criminal acts or engaging in acts of violence. MIOG § 137-3.4(1)(f) and (g)." (2) "When an FBI field office learns of the commission of a serious crime by an? informant, FBI headquarters must be notified. MIOG § 137-4(5)(b)." (3) "When an FBI field office learns of participation by an informant in a serious act of violence, FBI headquarters must be notified. MIOG § 137-4(5)(c)." (4) "The handling agent must record and index all information furnished by or about informants. MIOG §§ 137-5(7); 137-8(1)."

(5) "An FBI agent responsible for handling an informant does not have the discretion to reveal to that informant the identity of a person reporting a crime committed by that informant. MIOG § 137-5(10)." Id. at 12. A 1997 administrative inquiry by the FBI Office ofProfessional Responsibility found that FBI supervisors did notfollow written review requirements, and an October 1999Compliance Review found a total of twenty-seven instances ofBulger and Flemmi threatening someone, yet there is no recordthat FBI headquarters was ever notified of the threats. Id.

Again, according to Rakes and Dammers's theory of their claims,the conduct at issue in this case is Connolly and Morris'sdisregard for various FBI rules and regulations. At least some ofthe rules and regulations cited by Rakes and Dammers aremandatory in nature. See, e.g., MIOG § 137-4(5)(b) ("Whenever afield office learns of the commission of a serious crime by aninformant or confidential source, even if unconnected with an FBIassignment, FBIHQ must be notified." (emphasis added)). Infact, nothing in the United States' brief suggests that theserules and regulations were actually discretionary in any way.Therefore, the conduct complained of — namely, Connolly andMorris's violations of FBI rules and regulations — is notdiscretionary, and thus not covered by the discretionary functionexception to the FTCA.

C. Duty To Act Under Massachusetts Tort Law

The United States argues that Rakes and Dammers's FTCA claimsare "not viable because there is no analogous private personliability under state law." Def.'s Mem. at 16 (alterationsomitted). Under the FTCA, liability can only arise under circumstances where "a private person? would be liable tothe claimant in accordance with the law of the place where theact or omission occurred." 28 U.S.C. § 1346(b)(1). In the instantcase, the United States contends that Massachusetts law does notimpose a duty on a private person to protect a thirdparty.3 Def.'s Mem. at 17. Specifically, the UnitedStates argues that Massachusetts courts have applied section 314of the Restatement (Second) of Torts (1965), see id. at 18,which provides that "[t]he fact that the actor realizes or shouldrealize that action on his part is necessary for another's aid orprotection does not of itself impose a duty to take such action."Id. at 18 n. 11. While this is true, as will be discussed inmore detail below, Massachusetts appears to recognize someexceptions to the general rule expressed in section 314.4 1. The Section 321 Exception

The exact issue of Massachusetts law presented here wasaddressed recently by Judge Lindsay on a motion to dismiss inDavis v. United States, 340 F. Supp. 2d 79 (D. Mass. 2004), acase involving allegations that the FBI wrongfully permittedBulger and Flemmi to engage in various crimes, including themurder of Debra Davis. Judge Lindsay held that althoughMassachusetts law does not, in general, impose a duty on aprivate person to protect a third party from harm, it has"embraced the principle, if not the actual text," of section321(1) of the Restatement (Second) of Torts (1965), whichprovides that "[i]f the actor does an act, and subsequentlyrealizes or should realize that it has created an unreasonablerisk of causing physical harm to another, he is under a duty toexercise reasonable care to prevent the risk from taking effect."Davis, 340 F. Supp. 2d at 90. In support, Judge Lindsay citedCommonwealth v. Levesque, 436 Mass. 443, 449-50 (2002), acase in which the Supreme Judicial Court noted that "[a]lthoughwe have yet to recognize explicitly § 321 as a basis for civilnegligence, 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 warning by the actor." (citation omitted). The court in Levesque heldthe defendants criminally liable for the deaths of sixfirefighters who died in a warehouse fire that the defendants hadaccidentally started, but failed to report or to control. JudgeLindsay reasoned in Davis that "[i]f an individual can becriminally liable for failing to mitigate a hazard of his owncreation that results in death, it follows that he also can besubject to civil liability in those circumstances." Davis,340 F. Supp. 2d at 90.5 Rakes and Dammers urge this Court to adopt Judge Lindsay'sruling in Davis that Massachusetts law recognizes section 321.While the reasoning in Davis is convincing in the context ofmurder, it is unclear whether the Supreme Judicial Court wouldimpose a duty in the instant case where the only physical harmalleged is emotional distress. Section 321(1) specifies conductthat creates "an unreasonable risk of causing physical harm"and provides that a private person may be "under a duty toexercise reasonable care to prevent the risk from takingeffect." Ultimately, even if this Court agrees with JudgeLindsay that Massachusetts recognizes the section 321 exception,it is uncertain whether the Supreme Judicial Court would apply itto this particular case.

2. The "Special Relationship" Exception

The applicability of section 321 aside, the United Statesconcedes that under Massachusetts law, a duty to act does extend"to those who have relied in some special way upon the defendant,to those whom defendants have helped to place in a position wherethey are likely to depend upon his avoiding negligent omissions."Def.'s Mem. at 19 (quoting Carrier v. Riddell, Inc.,721 F.2d 867, 868-69 (1st Cir. 1983)) (internal quotations omitted). InCarrier v. Riddell, Inc., a case governed by Massachusettslaw, the First Circuit explained when a duty to help arises: Speaking in terms of classical tort principle, when one claims that negligence lies in the commission of an act, a defendant's duty not to behave negligently typically extends to include all those whom the defendant might reasonably have foreseen to be potential victims of the negligence. Palsgraf v. Long Island Railroad Co., 248 N.Y. at 341-43 . . . Restatement (Second) of Torts, § 281. But where negligence consists of an omission — a failure to act — a defendant's duty not to act negligently is more limited. It extends to those who have relied in some special way upon the defendant, to those whom defendants have helped to place in a position where they are likely to depend upon his avoiding negligent omissions. See Restatement (Second) of Torts, §§ 314-324A . . . Thus, a passerby seeing a man drown in a pond may have a moral obligation to extend a helping hand, but he does not necessarily have a legal obligation to do so. Osterlind v. Hill, 263 Mass. 73 . . . (1928) . . . Restatement (Second) of Torts, § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). If, however, the presence of the passerby, say, in the costume of a lifeguard, reasonably led the drowning man to go for a swim, the passerby might then be obliged to make efforts to help. See . . . Restatement (Second) of Torts, § 314A (special relations giving rise to duty to aid or protect).Carrier, 721 F.2d at 868-69.

The Supreme Judicial Court has explained that the specialrelationship can exist between the defendant and the plaintiff orbetween the defendant and the third party wrongdoer:

The Restatement (Second) of Torts § 315 recognizes two types of special relationships that may form the basis of an exception to the general principle that a person has no duty to control the conduct of a third person. One exception is based on the finding of a special relation between the actor (i.e. the person whose duty is at issue) and the potential plaintiff. . . . The other exception set forth in the Restatement arises when there is a special relation between the actor and the third person. We have been criticized for overlooking this portion of the Restatement in our analyses. . . ." Jean W. v. Commonwealth, 414 Mass. 496, 513 (1993);6see also Mosko v. Raytheon Co., 416 Mass. 395, 402 n. 7(1993) (recognizing that section 315 provides "that a person mayhave a duty to control the actions of another so as to preventharm to third parties if a `special relation' exists between theperson and the other who should be controlled"). With regard tothe second type of special relationship, section 315 providesthat "[t]here 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. . . ." Restatement (Second) of Torts, §315.

According to Rakes and Dammers, there is no dispute that therewas a "special relationship" between Bulger and Flemmi and theFBI. Pls.' Opp'n at 17. The United States does not deny this, butrather argues that the only relationship relevant to the inquiry is that between Rakes and Dammers and theFBI.7 See Def.'s Mem. at 19. The United States'position runs counter to Jean W.'s explication of the two typesof special relationships recognized in section 315. If thereindeed is no dispute between the parties that a specialrelationship existed between the FBI and Bulger and Flemmi, thenit would appear likely that the Supreme Judicial Court would holdthat a duty of care arises in this case under section315.8 See Davis, 340 F. Supp. 2d at 93 ("The allegedrelationship the government had with Flemmi and Bulger was a`special relationship' within the meaning of tort law, creating a duty owed to the general public to controlthem.").

3. The Section 876(b) Exception

The Supreme Judicial Court has recognized that "[f]or 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) (quoting Restatement (First) of Torts § 876(b) (1939))(holding a drag racer liable for deaths resulting from a crashbetween the decedent and another car); see also Jacobs v.Castronovo, 59 Mass. App. Ct. 1108 (2003) ("[T]hough notexplicitly adopted in Massachusetts, [Restatement (Second) ofTorts § 876] has been cited in appellate decisions and, in someinstances, has provided the basis for recovery." (quotingKunker v. Hill, 44 Mass. App. Ct. 184, 189 (1998) (internalquotations omitted)). Judge Lindsay held that section 876(b)'s"substantial assistance" rule applied in Davis. See Davis,340 F. Supp. 2d at 93 ("In allegedly permitting Flemmi and Bulgerto commit crimes with impunity and not warning the foreseeablevictims of those crimes, the government gave Flemmi and Bulger`substantial assistance' in murdering Davis.").

In Davis, Judge Lindsay cited an instructive case from theD.C. Circuit, Halberstam v. Welch, 705 F.2d 472 (D.C. Cir.1983), which was cited with approval in Alberts v. Devinek, 395 Mass. 59, 71 (1985). The court in Halberstam applied section 876(b)to hold that the defendant could be found civilly liable for amurder her boyfriend committed while burglarizing a home.Although the defendant was not at the scene of the crime, thecourt found that she helped her boyfriend run a criminalenterprise that he was advancing when he committed the murder.705 F.2d at 488. Even though her acts in disposing stolen goods"were neutral standing alone, they must be evaluated in thecontext of the enterprise they aided." Id. In determiningwhether the defendant had given "substantial assistance" to herboyfriend, the court looked at "the nature of the act encouraged;the amount [and kind] of assistance given; the defendant'sabsence or presence at the time of the tort; [her] relation tothe tortious actor; and the defendant's state of mind." Id. at483-84 (citing Restatement (Second) of Torts § 876(b) cmt. d(1979)).

Although neither party has cited section 876(b) in theirbriefs, Judge Lindsay's Davis decision is persuasive. Itappears that the "substantial assistance" theory may be a viableone for Rakes and Dammers as well.

D. Conclusion

Of the three issues raised by the United States in its motionfor summary judgment on the FTCA claims, the most difficult onefor Rakes and Dammers to overcome is the final question ofwhether Massachusetts recognizes a duty to act and, if so, under what circumstances. Although Massachusetts courtshave not yet reached a case as unique — and disturbing — as thisone, the Court believes that if presented with the facts of thiscase, the Supreme Judicial Court would rule that Rakes andDammers have alleged viable negligence claims based on the FBI'sfailure to act.9 The Court, however, need not speculatefurther [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] on whether Massachusetts would apply Restatement (Second) ofTorts §§ 321, 315, and 876(b), or some other exception to Rakesand Dammers's claims. For reasons set forth in infra sectionII, the Court does not reach the United States' motion forsummary judgment.

II. UNITED STATES' RENEWED MOTION TO DISMISS THE FTCA CLAIMSAS TIME-BARRED UNDER THE APPLICABLE STATUTE OF LIMITATIONS

Rakes and Dammers originally filed their FTCA claims on May 11,2001. The United States first moved to dismiss Dammers'scomplaint on statute of limitations grounds on August 20, 2002. That motion was taken under advisement on October 22, 2002 and,after a fair amount of internal waffling, denied without opinionon March 20, 2003.

On September 30, 2004, the United States filed a renewed motionto dismiss Rakes and Dammers's claims as time-barred under theFTCA's two-year statute of limitations, 28 U.S.C. § 2401(b),relying on the First Circuit's recent decision in McIntyre v.United States, 367 F.3d 38 (1st Cir. 2004), discussing the FTCAaccrual standard and applying it to two cases involving the FBI'srelationship with Bulger and Flemmi. The United States arguesthat under McIntyre's objective accrual test, Rakes and Dammersshould have discovered the factual basis for their FTCA claimsbefore the cut-off date of May 11, 1999. In opposition, Rakes andDammers contend their claims did not accrue until September 15,1999, the day Judge Wolf issued his opinion in United States v.Salemme, 91 F. Supp. 2d 141. Given the import of McIntyre tothis case, the statute of limitations issue deserves a secondlook.

A. Facts

1. Judge Wolf's Factual Findings In Salemme Regarding TheExtortion of Rakes and Dammers's Liquor Store

On September 15, 1999, Judge Wolf issued a lengthy decision inUnited States v. Salemme, laying out a possible pattern ofcorruption involving FBI agent Connolly and his supervisorMorris, and Bulger and Flemmi, two leaders of the Winter Hill Gang. The opinion recounted that since the 1970s, Bulger andFlemmi were top-level FBI informants providing information to theagency about La Cosa Nostra. It also suggested that Bulger andFlemmi had received special treatment from the FBI, includingprotection from prosecution and access to the names of otherinformants. Salemme, 91 F. Supp. 2d at 148-63, 322.

Relying on the September 29, 1998 testimony of Dammers's uncle,Boston Police Detective Joseph Lundbohm, and the June 4, 1998testimony of Supervisory Special Agent of the Boston Office JamesA. Ring, Judge Wolf made several factual findings relevant toRakes and Dammers's extortion claims: In about January 1984, Connolly received very reliable information concerning an ongoing extortion by Bulger and Flemmi. In violation of FBI policy and practice, Connolly did not record the information or disclose it to his Supervisor as required by the FBI Guidelines. Nor did he try to obtain the testimony of the victims or conduct any other investigation. Instead, he told Bulger of the charges. In January 1984, Joseph Lundbohm was a Boston Police Detective. Lundbohm Sept. 29, 1998 Tr. at 112-18. Lundbohm's niece, Julie Rakes, and her husband Stephen had recently bought a liquor store in South Boston. Id. at 116. Bulger and Flemmi evidently decided that the store would be an excellent hub for their activities. They, and Kevin Weeks, visited the Rakes and said they wanted to buy the liquor store. Id. The Rakes told them that it was not for sale. Id. Flemmi responded by pulling out a gun, commenting on how lovely the Rakes's young child was, and reiterating that they were going to buy the liquor store. Id. at 116-17. The Rakes sought Lundbohm's assistance, telling him what occurred. Id. at 116. Lundbohm knew that Bulger and Flemmi were reputed to be dangerous members of organized crime. Id. at 138. He felt that the FBI would be the most appropriate law enforcement agency to investigate the ongoing extortion. Id. at 134. He did not know that Bulger and Flemmi were FBI informants, or that Connolly was their handler. Id. at 123, 145. Lundbohm was acquainted with Connolly professionally, knew that he was involved in investigating organized crime and, with the Rakes's consent, decided to speak with Connolly in an effort to prompt an FBI investigation. Id. at 118. Lundbohm related to Connolly what the Rakes had told him. Id. at 119. Connolly asked whether the Rakes would "wear a wire" to record conversations with Bulger, Flemmi, and Weeks. Id. at 119, 126. Lundbohm indicated that he would advise them not to do so. Id. Connolly responded that he would take the information, but did not feel that there was much that the FBI could do. Id. Connolly made no record of the information Lundbohm had provided to him. Nor did he disclose it to Ring, who had become the Acting Supervisor of the Organized Crime squad in January 1983. Ring June 4, 1998 Tr. at 44. Connolly did, however, tell Bulger of his conversation with Lundbohm. Bulger subsequently urged the Rakes to "back off." Lundbohm Sept. 29, 1998 Tr. at 122. Lundbohm correctly inferred that Bulger had learned that the Rakes had been trying to generate an FBI investigation of him. Id. at 122, 139-40. The FBI did not investigate the extortion of the Rakes in any way. More specifically, Connolly did nothing to attempt to obtain the testimony of Mr. and Mrs. Rakes. Nor did he do anything else to acquire evidence of the effort of Bulger and Flemmi to frighten them into selling their liquor store. In any event, the extortionate scheme succeeded. The Rakes reluctantly sold their liquor store to Bulger and Flemmi. Id. at 117. It was re-named the South Boston Liquor Mart, and in the near future became a focus of the investigative efforts of several law enforcement agencies, not including the FBI.Salemme, 91 F. Supp. 2d at 215-16.

The facts of the 1984 extortion as alleged in Rakes andDammers's complaints closely track Judge Wolf's findings inSalemme. The complaints add, however, that for the next tenyears, Rakes and Dammers continued to receive threats from theGang, including a threat delivered by Bulger to Rakes in 1991,right before Rakes was to testify before a grand jury. See, e.g., Rakes Compl. ¶¶ 355-360. The complaints allege thatRakes, out of fear, testified falsely before the grand jury in1991 and again in 1995, and was later convicted of perjury. Id.¶¶ 361-368.

2. Boston News Coverage Of The FBI's Relationship With BulgerAnd Flemmi

As early as September 20, 1988, the Boston Globe reportedthat the FBI "has for years had a special relationship withBulger that has divided law enforcement bitterly and poisonedrelations among many investigators." The Globe Spotlight Team,The Bulger Mystique: Law Enforcement Officials' Lament About AnElusive Foe: Where Was Whitey?, Boston Globe, Sept. 20, 1988, at18. The 1988 article specifically questioned the propriety ofConnolly's relationship with Bulger, yet, like many other newspieces that followed over the years, it also reported the FBI'svehement denials of any wrongdoing. See, e.g., id. at 19(quoting James F. Ahearn, special agent in charge of the Bostonoffice, as unequivocally denying that the FBI gave any "specialtreatment" to Bulger); Dick Lehr, Finnerty Is Attorney For FBIAgent, Boston Globe, March 24, 1989, at 16 (rejecting "thenotion that Bulger has had relations with the bureau that haveleft him free of its scrutiny"); Kevin Cullen, Southie Is HisHometown; Whitey Bulger: Man And Myth, Boston Globe, Aug. 12,1990 (reporting that Bulger's informant relationship with the FBI"has led some in law enforcement who have targeted Bulger tosuspect that some FBI agents have somehow helped Bulger avoidprosecution"); Dick Lehr & Kevin Cullen, Liquor Purchase FuelsFriction Over FBI-Whitey Bulger Tie, Boston Globe, Nov. 11,1990, at 44-45 (reporting the FBI's purchase of liquor from theSouth Boston Liquor Mart, the "widely held perception in lawenforcement that Bulger has exploited the FBI," and the FBI'sstrong denials of any impropriety).

General suspicions regarding the FBI's relationship with Bulgercontinued into the 1990s, as Bulger consistently managed to stayone step ahead of the law. After indictments were unsealedagainst Bulger and Flemmi, the Boston Globe reported that"[s]ome prosecutors concede [Bulger] may be able to counter theracketeering charge with an allegation of his own — that hiscriminal activity was just part of doing his job for the FBI."Gerard O'Neill, Dick Lehr, & Kevin Cullen, New Team, TacticsHastened Whitey Bulger's Fall, Boston Globe, March 5, 1995.According to the same article, this sentiment was echoed by anunnamed, "high-level law enforcement official" who suggested that"there would be as much trouble as glory for the FBI in buildinga case against Bulger." Id. Despite the rumors of impropriety,the Boston Globe reported in 1995 that "[n]o one has ever shownthe FBI to be an active protector of Bulger — indeed, such a viewis widely condemned as grossly unfair." Dick Lehr, Bulger'sFlight Spares FBI Burden Of Ties Being Aired, Insiders Say,Boston Globe, March 5, 1995, at 24. Evidence of the FBI's protection of Bulger and Flemmi firstbegan to surface in the press during the summer of 1997. On June26, 1997, the Boston Globe reported that Flemmi was assertingin the Salemme proceedings that FBI agent Morris gave him andBulger assurances that they could continue to commit crimeswithout risk of prosecution in exchange for information aboutorganized crime activities. Patricia Nealon, Flemmi Says He,Bulger Got FBI's OK On Crimes, Boston Globe, June 26, 1997, atA1 (attaching Flemmi's affidavit attesting that "Mr. Morris toldMr. Bulger and I that we could do anything we wanted so long aswe didn't `clip anyone.' On several occasions, . . . Mr. Bulgerand I were assured that we could be involved in any criminalactivities short of committing murder and we would be`protected.' I operated and relied upon this express agreementwith the FBI"). It was also reported that Flemmi was contendingin the Salemme proceedings that the FBI had tipped him to thedate that his indictment was to be returned so that he couldflee. Id. The Boston Globe reported, however, that Flemmi'saffidavit was contradicted by an affidavit filed by Paul E.Coffey, chief of the Justice Department's Organized Crime andRacketeering Section, stating that Flemmi and Bulger were warnedthat they were not authorized to commit crimes unless theyreceived specific permission, which they did not receive. Id.On the other hand, the article also reported that Flemmi'scontentions were supported by a January 1995 report by the chiefdivision counsel of the Boston office of the FBI concluding that Flemmi'shandlers had implicitly authorized his illegal gamblingactivities and involvement in La Cosa Nostra policy-making. Id.

On December 5, 1997, the Boston Herald reported Judge Wolf'sstatement that the FBI's Office of Professional Responsibilityfound "no evidence of continuing criminal conduct within thestatute of limitations" by Morris or Connolly. Ralph Ranalli,Justice Dept. Clears Ex-FBI Agents In Mob Case, Boston Herald,Dec. 5, 1997, at 24 (internal quotations omitted). The articleadded that notwithstanding the report, Morris and Connolly mightstill invoke their Fifth Amendment rights againstself-incrimination if called to testify in the Salemmeproceedings. Id.

On January 7, 1998, the Boston Herald reported on the openingarguments in the Salemme proceedings: 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-1970's, defense lawyers alleged yesterday. The alleged promise and delivery of that protection helped seal Flemmi's loyalty to the bureau for the next 20 years and was proof that the FBI gave the Quincy gangster "immunity" from prosecution for his crimes, the lawyers said during opening arguments in hearings on the FBI's informant relationships with Flemmi, 63, and . . . Bulger, 67. . . . In a brief opening statement yesterday, a federal prosecutor scoffed at the defense assertions, saying they were tantamount to Flemmi saying he was a "Junior G-Man" with a license to kill.

"He's saying `I can kill people! I can blow up lawyers!'" Assistant U.S. Attorney Fred M. Wyshak said. "Isn't that preposterous?" Ralph Ranalli, Mobster: I Had License To Kill Flemmi Says FBIKnew He Was Murderer, Boston Herald, Jan. 7, 1998. The articlealso stated that Connolly would not testify in the proceedings,citing his Fifth Amendment right not to incriminate himself.Id.

On January 9, 1998, the Boston Globe published a storystating that "[t]he FBI had looked the other way before when itcame to their prized informants" Bulger and Flemmi: [A]fter Bulger and Flemmi were named as suspects in the gangland-style murders of a millionaire jai alai company owner and an associate, the FBI continued taking information from them, even after each refused to take a polygraph test in connection with the slayings. So shielded were Bulger and Flemmi that the head of the FBI's Boston office, James W. Greenleaf, testified yesterday that he didn't know that Bulger and Flemmi had refused to take lie detector tests, nor was he told that the two were implicated in gambling, loansharking, drug dealing and extortion. Greenleaf, who headed the Boston FBI office from November of 1982 until December of 1986, testified at length about a 1984 investigation undertaken by the DEA and the Quincy police into Bulger and Flemmi's alleged trafficking in cocaine. . . . . [D]espite its willingness to assist the DEA in its investigation of Bulger and Flemmi, Greenleaf acknowledged under questioning by Flemmi's lawyer . . . that the FBI never initiated a probe of Bulger or Flemmi while Greenleaf was in charge of the Boston office. He also said he was not aware that Bulger and Flemmi had refused to take a polygraph test when questioned about the murders of World Jai Lai owner Roger Wheeler and associate John Callahan.Patricia Nealon, FBI Loyalty To Mob Duo Is Detailed: DEA, OthersKept In Dark About Bulger, Flemmi Ties, Boston Globe, Jan. 9,1998, at B1. The article also stated that Greenleaf and formerSpecial Agent in Charge Lawrence Sarhatt had testified that Bulger and Flemmi were not given permission to commit crimes.Id. In a subsequent article, the Boston Herald reported thatFBI agent Paul Rico likewise testified that he did not promise toprotect Flemmi from prosecution in exchange for information onthe Mob. David Weber, Flemmi's Lawyer Contends Fed Let HisCrimes Slide, Boston Herald, Jan. 14, 1998, at 10.

In an article published on May 28, 1998, the Boston Globe,citing Globe interviews and grand jury testimony read in court,reported in detail the extortion of Rakes and Dammers's liquorstore, their complaint to Boston police detective Lundbohm, andLundbohm's report of the extortion to agent Connolly. ShelleyMurphy, Mobster's Takeover Of Store Recounted, Boston Globe,May 28, 1998, at A1. The news story recounted Bulger, Flemmi, andWeeks's visit to the Rakes home in January 1984, their threats toRakes's family, and how "[t]hey carried a gun, a bag stuffed with$67,000 cash, and an offer Rakes couldn't refuse." Id. Thearticle also reported that when Lundbohm "tried to help [theRakes family] by reporting the strongarm tactics of Bulger andFlemmi to the FBI, he unwittingly talked to the very agent whowas their `handler,' John Connolly." Id. According to thepiece, Lundbohm said he knew Connolly from various cases he hadworked on and had arranged to meet Connolly for coffee. Id. Inan interview with the Boston Globe, Connolly admitted that "hevaguely recalls being told that the Rakeses were being threatenedinto selling their store, but that `they did not want to get wired up and they did not want to be witnesses.'" Id. Thearticle went on to mention specifically Julie Rakes's grand jurytestimony and the perjury trial against Stephen Rakes. Id.;see also Shelley Murphy, Woman Says Bulger Shielded, ButHusband Charged, Boston Globe, May 30, 1998, at B6 (discussingthe liquor store extortion and reporting that Julie Rakes said atStephen Rakes's trial that "she couldn't understand why the IRSis prosecuting her ex-husband [and] [s]he noted the FBI took noaction against Bulger in 1984"); David Weber, Merchant's Ex-WifeDetails Mob Buyout, Boston Herald, May 31, 1998, at 5(recounting Julie Rakes's testimony regarding the extortion).

On June 17, 1998, the Boston Globe reported that during abrief telephone interview with the newspaper, Connolly deniedever talking to Bulger about the extortion of Rakes and Dammers'sliquor store. Dick Lehr, Ex-detective's Testimony OK'd InPerjury Trial, Boston Globe, June 17, 1998, at F12. The articlequoted Connolly as stating: "I never had any reason to discuss myconversation with Mr. Lundbohm with Mr. Bulger, and I never did."Id. (internal quotations omitted). On the same day, the BostonHerald reported that according to Lundbohm's testimony, afterLundbohm had spoken with Connolly about the extortion, StephenRakes told Lundbohm that "Whitey said to back off." David Weber,Whitey Told Store Owner To `Back Off' From Authorities, BostonHerald, June 17, 1998, at 32. The article stated that "Lundbohmsaid he understood that to mean that `Bulger had some knowledge of the conversation with Mr. Connolly.'" Id. The articlereported that Connolly again denied having any conversation withBulger about the extortion. Id. Lundbohm testified that formerBoston Police Superintendent Anthony DiNatale was the only otherperson who knew about his conversation with Connolly. Id.

The Boston Globe reported Rakes's conviction for perjury onJune 25, 1998. Marcella Bombardieri, Jury Convicts Man OfPerjury For Denying Gangsters' Coercion, Boston Globe, June 25,1998, at B4. The article mentioned Flemmi's contention that hewas granted immunity from prosecution and Lundbohm's report ofthe extortion to Connolly. Id.

The Boston Globe published an article on July 22, 1998,specifically mentioning the Rakes and Dammers extortion anddescribing Bulger and Flemmi as career criminals "sanctioned" bythe FBI: At the dawn of his deal with the FBI, James "Whitey" Bulger was an angry leg breaker at a Dedham restaurant looking to collect an unpaid loan. Leaning across a table, he gave the owner a choice: Pay, or have his ears cut off and stuffed in his mouth. Restaurateur Francis X. Green told his story to the FBI, expecting protection and prosecution. But Bulger had an ace in the hole. He worked for the FBI. Looking back, the 1976 incident at the Back Side Restaurant was a turning point. An extortion case, built on a credible, cooperative witness, might have stopped Bulger and his partner, Stephen "The Rifleman" Flemmi, from launching a 15-year crime spree. Instead, the FBI did nothing, sending a powerful message to two of the region's most ruthless organized crime figures: As long as you're with us, we won't bother you. As a result, Bulger and Flemmi became sanctioned career criminals while spying on the underworld for the FBI. Despite 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. It made no difference who the victims were, fellow wise guys or innocent people. And it didn't matter if the victims were willing to cooperate with the FBI or were scared silent. In some cases, the bureau even helped the gangsters by leaking information to them about ongoing investigations. Recent court testimony shows the deflected cases ranged from the momentous to the mundane, but the consistent thread running through most of them is the involvement of Bulger's handler, former FBI agent John Connolly of South Boston. Some potential cases that went nowhere: — In 1982, a wise guy turned FBI informant was gunned down after Connolly, according to [Morris's] testimony, told Bulger and Flemmi that the man had implicated them in a string of gangland slayings and the murder of an Oklahoma businessman. — 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." — In the late 1980s, FBI agents John Newton and Roderick Kennedy failed to document or follow up on a realtor's claim that a gun-toting Bulger threatened to stuff him in a body bag if the realtor didn't pay him $50,000. — In 1988, another FBI agent, supervisor John Morris, who [according to his own testimony] had pocketed $7,000 in payoffs from Bulger, warned Bulger and Flemmi that the FBI had tapped the telephone of a Roxbury bookmaker who worked for them. While indictments resulted from the wiretap, including some Boston policemen for taking payoffs, Bulger and Flemmi went untouched. Although there is evidence that Connolly protected Bulger and Flemmi, he was not alone. Supervisors and fellow agents often were swayed by his claim there was insufficient evidence to target the pair or that they were too valuable to the FBI. For example, FBI agent James Blackburn testified he never pursued allegations that Bulger was shaking down a South Boston drug dealer in 1988 after Connolly told him it wasn't true. And agent James J. Lavin III testified that in 1987 he ignored evidence that city workers erected guardrails on private property outside the South Boston liquor store controlled by Bulger after Connolly reminded him that Bulger was an indispensable informant. In the end, Bulger and Flemmi were always suspects, but never defendants; always informants, never targets. Last April, Connolly refused to testify at federal court hearings exploring the FBI's controversial relationship with Bulger and Flemmi, citing his Fifth Amendment right not to incriminate himself. In interviews, he has accused other agents of lying when they testified critically about his handling of Bulger and Flemmi. "I'm not a rogue agent," Connolly said recently. "Anything I ever did, I did lawfully. I have no trouble with what I did. I did it for the FBI, all the way to D.C., constant oversight." But the record now shows that the deal — protection for information — left the bureau shortchanged, co-opted, and compromised. In a telling aside during recent testimony, one of Connolly's closest associates in the bureau, former agent Nicholas Gianturco, talked about entertaining Bulger and Flemmi at his Peabody home. "I felt comfortable having them to the house," he said. "It was not an adversarial relationship."Shelly Murphy, Cases Disappear As FBI Looks Away, Boston Globe,July 22, 1998, at A1. The article reported that Lundbohm had saidthat he suspected Connolly had tipped Bulger about their meetingregarding the extortion. Id. Although Connolly denied leakingthe information, the article reported that "federal prosecutorssaid a search of FBI files failed to uncover any paperwork on[the incident]," and the article concluded that "[i]t appearsConnolly made a unilateral decision to neither investigate theextortion nor pass it along to a supervisor." Id. On September 23, 1998, the Boston Herald ran an articlesummarizing the testimony of Supervisory Special Agent of theBoston Office James A. Ring in the Salemme proceedings. DavidWeber, Ex-FBI Agent Accused Of Keeping Informant Info, BostonHerald, Sept. 23, 1998, at 27. The article stated that "Ringalleged that Connolly was clearly out of line when he failed topass on information that Bulger and Flemmi committed extortion in1984 against South Boston liquor store owner Stephen `Stippo'Rakes by forcing Rakes to sell his store to them." Id. Ring wasquoted as testifying "I would have definitely expected (Connolly)to come to me and discuss it . . . He didn't have the authorityto handle that on his own." Id. The article also reported that"Ring said Connolly never said or indicated that he (Connolly)believed the two reputed mobsters had an immunity deal with thegovernment." Id.

In an article specifically mentioning the extortion of Rakesand Dammers's liquor store and Lundbohm's meeting with Connolly,the Boston Globe reported on September 30, 1998 that Flemmi'sdefense lawyers were arguing that Flemmi and Bulger were"protected by their bureau handlers, who violated the agency'sown guidelines." Ralph Rinalli, Supervisor: Promises toInformants Tripped FBI, Boston Herald, Sept. 30, 1998, at 14.The article summarized the testimony of a former FBI supervisorwho pointed out a "Catch-22" in the FBI's handling of informants.Id. Although "[t]he guidelines call on the FBI, in certain circumstances, to notify other agencies when their informantshave committed serious crimes," the agency "is hamstrung by thepromises made to keep [informants'] identities secret." Id.

B. Standard of Review and Accrual Under The FTCA

On the United States' motion to dismiss, the Court "mustconstrue the complaint liberally, treating all well-pleaded factsas true and drawing all reasonable inferences in favor of theplaintiffs." Viqueira v. First Bank, 140 F.3d 12, 16 (1stCir. 1998). In addition, in order to determine jurisdiction, theCourt can consider evidence submitted by the parties and, ifnecessary, settle factual disputes. See Valedon Martinez v.Hospital Presbiteriano de la Communidad, Inc., 806 F.2d 1128,1132 (1st Cir. 1986); Heinrich v. Sweet, 44 F. Supp. 2d 408,415 (D. Mass. 1999). Therefore, it is appropriate to considersupplemental materials as they are attached to the pleadingsbefore this Court. Such consideration does not, however, requirethe Court to treat this motion as one for summary judgment.Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002)("The attachment of exhibits to a Rule 12(b)(1) motion does notconvert it to a Rule 56 motion.").

Recently, the First Circuit considered a consolidated appeal ofJudge Lindsay's dismissal of FTCA claims in McIntyre v. UnitedStates, 254 F. Supp. 2d 183 (D. Mass. 2003) (involving thealleged wrongful death of John McIntyre of Massachusetts), andWheeler v. United States, No. 02-10464-RCL (D. Mass. March31, 2003) (involving the alleged wrongful death of Roger Wheeler ofOklahoma), on the grounds that the plaintiffs did not file theirclaims within the required two-year period from the accrual ofthe cause of action. See McIntyre v. United States,367 F.3d 38 (1st Cir. 2004). The First Circuit reversed JudgeLindsay's decision in the McIntyre case and affirmed hisdismissal of the FTCA claims in the Wheeler case. Id. Thecourt's discussion and application of the applicable FTCA accrualstandard is illuminating and governs this Court's approach to theinstant motion to dismiss.

The FTCA provides that "[a] tort claim against the UnitedStates shall be forever barred unless it is presented in writingto the appropriate Federal agency within two years after suchclaim accrues." 28 U.S.C. § 2401(b). As a waiver of sovereignimmunity, the FTCA is strictly construed. Skwira v. UnitedStates, 344 F.3d 64, 73 (1st Cir. 2003). In determining whenMcIntyre and Wheeler's FTCA claims accrued, the First Circuitapplied the discovery rule, which provides that "a claim accrueswhen the plaintiff discovers, or in the exercise of reasonablediligence should have discovered, the factual basis for the causeof action." McIntyre, 367 F.3d at 52 (internal quotations andcitations omitted). "The test for whether a plaintiff should havediscovered necessary facts is an objective one." Id.(emphasis added). According to the court, the test has two parts: We look first to whether sufficient facts were available to provoke a reasonable person in the plaintiff's circumstances to inquire or investigate further. "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." Once a duty to inquire is established, the plaintiff is charged with the knowledge of what he or she would have uncovered through a reasonably diligent investigation. The next question is whether the plaintiff, if armed with the results of that investigation, would know enough to permit a reasonable person to believe that she had been injured and that there is a causal connection between the government and her injury. Definitive knowledge is not necessary. This inquiry is highly fact- and case-specific, as are the pertinent questions to ask.

Id. (citations omitted).

In applying the discovery rule to the McIntyres' claims, theFirst Circuit explained that the claims "are based on twointerrelated theories of how the FBI caused McIntyre's death": (1) by leaking his confidential informant status to Bulger and Flemmi, in violation of a special duty of non-disclosure owed to him by the government, and (2) by protecting Bulger and Flemmi from investigation and prosecution, thus enabling and emboldening them to murder him.Id. at 53-54 (paragraph structure altered). The court notedthat the second theory "is meant to buttress the first theory"and "perhaps also meant to serve as an independent basis ofliability." Id. at 54. The court went on to explain that thefirst "predominant theory depends on the following reasoning:"

1. McIntyre was cooperating with the government in its investigation of Bulger and Flemmi, which imposed a duty on the FBI; 2. McIntyre was murdered; 3. Bulger and Flemmi were responsible for the murder; 4. McIntyre was murdered because Bulger and Flemmi learned he was informing on them to government authorities; 5. It was agents of the FBI, Connolly and/or Morris, who told Bulger and Flemmi that McIntyre was cooperating with the FBI.Id. The court held that the district court had erred in notconsidering the fourth and fifth points in its accrual analysis.Id. Focusing on the fifth point, i.e., "whether a reasonableperson in the McIntyres' position, after conducting a diligentinvestigation, would have uncovered a sufficient factual basis tobelieve, before [the relevant accrual date of] May 25, 1998, thatthe FBI was the source of the leak to Bulger and Flemmi," theFirst Circuit concluded that a reasonable person in that positionwould not have. Id.

In support of its position, the United States had presented theFirst Circuit with various news articles published before May 25,1998 and with testimony from the Salemme hearing on April 15,1998. Id. at 54-56. The court considered each in turn, but heldthat the evidence was not enough to trigger accrual givenMcIntyre's claims. Of a June 1997 Boston Globe article thatsuggested implicitly that Bulger and Flemmi had somehow found outthat McIntyre was an informant, the court emphasized that "thearticle never even mentioned the possibility that the FBI haddisclosed this information to Bulger and Flemmi or had otherwisegiven its imprimatur to the murder." Id. at 54-55. Moreover, according to the court, "the McIntyres did not have a reasonedbasis to believe that it was the FBI that had leaked McIntyre'sidentity as an informant," id. at 55 (emphasis added), becausethe government itself had repeatedly denied any wrongdoing inBoston Globe and Boston Herald articles from 1988 through1997. Id. The court also discounted the April 15, 1998testimony of DEA Agent Stutman at the Salemme hearings, inwhich he stated that the FBI had compromised the DEA'sinvestigation of Bulger and Flemmi. Id. The court reasoned thatalthough Agent Stutman's testimony may suggest that the FBI hadtipped Bulger and Flemmi to listening devices or warned them ofraids, "it does not provide a reasoned basis to believe that theFBI leaked McIntyre's informant status to Bulger and Flemmi."Id. Finally, the court rejected the United States' argumentthat an April 23, 1998 Boston Herald story reporting that theFBI had leaked to Bulger and Flemmi the identity of a differentinformant, at a different time, and involving a differentunderlying crime, provided sufficient facts for a reasonableperson to believe that the FBI had also leaked McIntyre'sidentity. Id.

The court, in conclusion, held that "[e]ven assuming arguendothat the Boston Herald article was enough to lead the McIntyresto suspect that the FBI leaked McIntyre's identity, and thus totrigger a duty to inquire, a reasonably diligent investigationwould still not have revealed the necessary factual predicate fortheir claim before the accrual date." Id. As the court explained, the McIntyres would likely have been kept in thedark: Most avenues of investigation were cut off by the possibility of criminal liability for any FBI agents and others involved. Attempts to gain information through depositions would likely have been thwarted by invocations of the Fifth Amendment privilege against self-incrimination. And other information — such as testimony before the grand jury or facts discovered in the government investigation — was hidden behind a veil of secrecy. In this sense, the McIntyres had even less access to critical information than most FTCA plaintiffs.Id. at 55-56. The court noted that "[e]ven Judge Wolf had greatdifficulty in prying loose coherent information about McIntyre'sdeath by the date of his opinion." Id. at 57 (citing JudgeWolf's comment in Salemme that "the question of whether the FBIdisclosed McIntyre's identity could not `be resolved on thepresent record'").

Turning to the application of the discovery rule to theWheelers' claims, the First Circuit explained that the claims are"based on a fundamentally different legal theory than theMcIntyre case." Id. at 57. "Unlike the McIntyre case, which isbased on duties arising from the government/informantrelationship, the Wheelers' claim is not based on any directrelationship between Roger Wheeler and the FBI." Id. TheWheelers' wrongful death claims are based on direct and vicariousliability: [(1)] They 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 Wheeler's murder. [(2)] The Wheelers also assert that the United States is directly liable for failing to prevent Wheeler's murder, in light of the foreseeable risk that Bulger and Flemmi would continue to engage in violent criminal activity. [(3)] In addition, the Wheelers assert a generalized count against the United States for intentional infliction of emotional distress based on Wheeler's murder.Id. at 58 (paragraph structure altered). The court explainedthat "[f]or the Wheelers' claims to accrue, there had to be factsavailable that would permit a reasonable person to conclude": (1) that Bulger and Flemmi were instrumental in the murder of Roger Wheeler; (2) that Bulger and Flemmi were informants for the FBI; and (3) that the FBI had a special relationship with Bulger and Flemmi that protected and encouraged them in their criminal activity including Wheeler's murder.Id. (paragraph structure altered). The court easily ruled thatthe Wheelers had sufficient notice of the first two points beforethe May 11, 1999 accrual date, and therefore focused much of itsattention on the third set of facts. Id. at 58-59. Ultimately,the court held that each of the Wheelers was on notice ofsufficient facts present in the Boston and Oklahoma televisionand press coverage to allow a reasonable person to infer a causalconnection between the FBI's conduct and Roger Wheeler's murder.Id. at 59-60.

The court held the following news coverage relevant to itsanalysis: 1. On May 10, 1998, Ed Bradley of "60 Minutes" reported that the FBI and Bulger and Flemmi had an "extraordinary relationship" that "may have allowed [them] to get away with murder." Id. at 58 (internal quotations omitted). A detective interviewed for the show described Bulger and Flemmi as having a "`license' from the FBI to commit crimes that `covered a homicide.'" Id. David Wheeler was also interviewed for the show. Id.

2. "Two Tulsa World articles on July 11, 1997 and January 9, 1998, both of which specifically mentioned the Wheeler murder, reported that Flemmi was claiming in the Salemme proceedings that the FBI gave him and Bulger immunity from prosecution for their ongoing criminal activities in exchange for information about organized crime activities." Id. at 58-59. On May 10, 1998, a local Tulsa news station "reported that the FBI had tipped Bulger and Flemmi to Halloran's cooperation in the Wheeler murder investigation and that Boston FBI agents may have taken bribes from Bulger and Flemmi." Id. at 59. 3. In the summer of 1998, the Tulsa World and the Boston Globe, in articles that quoted David Wheeler and mentioned the Wheeler murder, reported that Morris had testified that the FBI had shielded Bulger and Flemmi, as two top informants, from prosecution for twenty years. Id. 4. On May 12, 1998, the Boston Herald reported that David Wheeler had said "in an interview that he `always believed' that former FBI agent Paul Rico `facilitated' his father's murder at the hands of Bulger and Flemmi." Id. The Boston Globe also reported on September 29, 1998 that David Wheeler expressed his belief that John Martorano's cooperation would bring to light "people who have enjoyed the protection of the FBI for many years while committing heinous crimes." Id. (internal quotations omitted).The court held this news coverage clearly sufficient to establishthat David Wheeler was on notice of his claims before May 11,1999. Id.

David Wheeler's knowledge, however, could not automatically beattributed to all of the other Wheelers. The court clarified that"the `knew or reasonably should have known' question must be asked individually, as to the information available to someone ineach plaintiff's situation." Id. Both geography and thestrength of the family members' connections were considered bythe court in its analysis. Id. at 60. After reviewing what areasonable person in each of the Wheelers' situations should haveknown, the court held that each of the Wheelers was on notice ofsufficient facts to raise suspicions invoking the duty to inquirefurther, and "[h]ad the Wheelers inquired further, the requisitefacts were present in the Boston and Oklahoma television andpress coverage to allow a reasonable person to infer a causalconnection between the FBI's actions and Roger Wheeler's murder."Id. at 60.

C. Application to Rakes and Dammers's Claims

Rakes and Dammers filed their claims on May 11, 2001.Therefore, the cut-off date for accrual of their FTCA claims isMay 11, 1999. The United States contends that there weresufficient facts available before May 11, 1999 that would permita reasonable person to infer a causal connection between theFBI's conduct and the extortion of Rakes and Dammers's liquorstore.10 Rakes and Dammers argue that sufficient factswere not available until September 15, 1999, the date of Judge Wolf'sdecision in Salemme.

Rakes and Dammers's claims are based on three related theoriesof how the FBI caused the extortion of Rakes and Dammers's liquorstore: (1) by protecting Bulger and Flemmi from investigation andprosecution, thus emboldening them to extort Rakes and Dammers;(2) by leaking Rakes and Dammers's extortion complaint to Bulger;and (3) by failing to ensure that Connolly and Morris followedFBI Guidelines in their handling of Bulger and Flemmi.

The first theory of liability resembles that addressed by theFirst Circuit in the Wheeler case. See McIntyre,367 F.3d at 58. Adapting the First Circuit's analysis of the Wheelers' claimsto this case, the Court holds that for Rakes and Dammers's claimsto accrue under this first theory, there had to be factsavailable that would permit a reasonable person to conclude: (1)that Bulger and Flemmi were instrumental in the extortion ofRakes and Dammers; (2) that Bulger and Flemmi were informants forthe FBI; and (3) that the FBI had a special relationship withBulger and Flemmi that protected and encouraged them in theircriminal activity, including the extortion of Rakes and Dammers.See id.

Rakes and Dammers concede that they had sufficient notice ofthe first two sets of facts before the accrual date of May 11,1999. The parties dispute, however, whether reasonable persons in Rakes and Dammers's positions would be on notice of the thirdset of facts. In approaching the contested issue, this Courtbegins its analysis with a review of the relevant media coverageprior to May 11, 1999.

Bulger's "special relationship" with the FBI, and Connolly inparticular, was reported by the Boston Globe as early asSeptember 20, 1988, and cited as a possible reason why Bulgerproved so elusive to law enforcement. Two Boston Globe articleson August 12, 1990 and November 11, 1990 reported on theperception of many in law enforcement that the FBI was somehowprotecting Bulger from prosecution. The November articlespecifically mentioned the FBI's controversial purchase of liquorfrom Bulger's South Boston Liquor Mart, the store formally ownedby Rakes and Dammers. As repeatedly reported by the BostonGlobe, however, these suspicions of impropriety were met withvehement denials by the Boston office of the FBI. Rumors of theFBI's protection of Bulger swirled again among law-enforcementand prosecutors after indictments issued against Bulger andFlemmi, and were reported in the Boston Globe on March 5, 1995.But such talk was discounted in another Boston Globe articlepublished on the same day, clarifying that no one had ever shownthat the FBI was actively protecting Bulger and that such a viewwas "widely condemned as grossly unfair." During this period from1988 to the mid-1990s, reports of the FBI's protection of Bulgerdid not rise above a general suspicion, and therefore the Court concludes that a reasonable person would not have causeduring this time to believe that the FBI had a specialrelationship with Bulger and Flemmi that protected and encouragedthem in their criminal activity, including the extortion of Rakesand Dammers. The facts available in the press during this periodare even too thin to conclude that a reasonable person would havebeen provoked to inquire further. Nevertheless, the connectionsmade in the press between Bulger, Connolly, and the FBI, andBulger's uncanny knack of staying one step ahead of the law, setthe stage for the revelations to come.

From the summer of 1997 to the fall of 1998, Boston newspapersdescribed in detail the FBI's protection of Bulger and Flemmifrom prosecution and investigation. Given that many of thearticles specifically discussed the 1984 extortion of Rakes andDammers's liquor store and Rakes's subsequent perjury trial, atleast some of them should have garnered attention from Rakes andDammers.

The Boston Globe reported on June 26, 1997 that Flemmi hadasserted in the Salemme proceedings that Morris gave him andBulger assurances that they could continue to commit crimeswithout risk of prosecution in exchange for information aboutorganized crime activities. Flemmi's affidavit, quoted in theJune 26 article, stated that "Mr. Morris told Mr. Bulger and Ithat we could do anything we wanted so long as we didn't `clipanyone.' On several occasions, . . . Mr. Bulger and I were assured that we could be involved in any criminal activitiesshort of committing murder and we would be `protected.' Ioperated and relied upon this express agreement with the FBI."Although the article reported that Flemmi's affidavit wascontradicted by a Justice Department affidavit, the article alsoreported that Flemmi's affidavit was supported by a January 1995report by the chief division counsel of the Boston office of theFBI concluding that Flemmi's handlers tacitly authorized hisillegal gambling activities and involvement in La Cosa Nostrapolicy-making.

On January 7, 1998, the Boston Herald reported on the openingstatements in the Salemme proceedings and Flemmi's claim thatthe FBI gave him and Bulger immunity from prosecution for crimes,including murder, in return for their work as informants. Twodays later, on January 9, 1998, the Boston Globe published astory stating that "[t]he FBI had looked the other way . . . whenit came to their prized informants" Bulger and Flemmi. Thearticle reported that Bulger and Flemmi were "so shielded" by theFBI that the head of the FBI's Boston office, James W. Greenleaf,testified that he was unaware that Bulger and Flemmi had refusedto take lie detector tests in connection with the murders ofRoger Wheeler and his associate, that he was never told that thetwo were implicated in gambling, loansharking, drug dealing andextortion, and that the FBI never initiated an investigation of Bulger and Flemmi while he was in charge of the Boston officefrom 1982 to 1986.

In the summer of 1998, two articles published in the BostonGlobe suggested a connection between the FBI's protection ofBulger and Flemmi from prosecution and investigation and Bulgerand Flemmi's extortion of Rakes and Dammers. On June 25, 1998, inan article reporting on Stephen Rakes's perjury conviction, theBoston Globe reiterated Flemmi's contention that he was grantedimmunity from prosecution and discussed detective Lundbohm'sunheeded report to Connolly regarding Bulger and Flemmi'sextortion of the Rakes family liquor store. The following month,in an article published on July 22, 1998, the Boston Globereported that the FBI had made Bulger and Flemmi into "sanctionedcareer criminals . . . spying on the underworld for the FBI." Thearticle, which specifically mentioned the extortion of Rakes andDammers and Connolly's failure to report it to his supervisors,stated that "[d]espite solid evidence indicating Bulger andFlemmi were involved in murders, shakedowns, and drug dealing,the FBI looked the other way throughout the 1970s and 1980s." Thearticle also reported that Morris had admitted in the Salemmeproceedings to protecting Bulger and Flemmi, to leakinginformation to Bulger and Flemmi about pending investigations,and to accepting bribes from Bulger and Flemmi. Morris'stestimony also implicated Connolly, who, according to the article, had refused to testify in the hearings,citing his Fifth Amendment right not to incriminate himself.

Through the fall of 1998, the Boston press continued to draw aconnection between the FBI's special relationship with Bulger andFlemmi and the extortion of Rakes and Dammers. The BostonHerald ran an article on September 23, 1998 summarizing thetestimony of Supervisory Special Agent of the Boston Office JamesA. Ring in the Salemme proceedings. The article reported thatRing had testified that Connolly was "clearly out of line" whenhe failed to pass on information regarding Bulger and Flemmi's1984 extortion of Rakes and Dammers's liquor store. Ring wasquoted as testifying "I would have definitely expected (Connolly)to come to me and discuss it . . . He didn't have the authorityto handle that on his own." In another article specificallymentioning the extortion of Rakes and Dammers's liquor store andLundbohm's meeting with Connolly, the Boston Globe reported onSeptember 30, 1998 that Flemmi's defense lawyers were arguingthat Flemmi and Bulger were "protected by their bureau handlers,who violated the agency's own guidelines." The article summarizedthe testimony of a former FBI supervisor who pointed out a"Catch-22" in the FBI's handling of informants, namely that theguidelines require the FBI to notify other agencies in certaincircumstances when their informants have committed crimes butalso require that the FBI keep their informant's identitiesconfidential. Based on the Boston press coverage from the summer of 1997 tothe fall of 1998, the Court rules that the information containedtherein was sufficient to establish that the FBI had a specialrelationship with Bulger and Flemmi that protected and encouragedthem in their criminal activity, including the extortion of Rakesand Dammers. See McIntyre, 367 F.3d at 58-60 (holding basedon similar news coverage that the Wheelers should have had notice"that the FBI had a special relationship with Bulger and Flemmithat protected and encouraged them in their criminal activityincluding Wheeler's murder").

Rakes and Dammers have argued that reports of the FBI'sprotection of Bulger and Flemmi from prosecution werecontradicted in the local press during this same period, andtherefore, the information contained therein was not sufficientto establish their first theory of liability. For example, onDecember 5, 1997, the Boston Herald reported that the FBI'sOffice of Professional Responsibility found "no evidence ofcontinuing criminal conduct within the statute of limitations" byMorris or Connolly. Ranalli, Justice Dept. Clears Ex-FBI AgentsIn Mob Case, at 24 (internal quotations omitted). On January 9,1998, the Boston Globe stated that FBI agents Greenleaf andSarhatt had testified that Bulger and Flemmi were not givenpermission to commit crimes, Nealon, FBI Loyalty To Mob Duo IsDetailed: DEA, Others Kept In Dark About Bulger, Flemmi Ties, atB1, and the Boston Herald reported five days later that FBIagent Rico also testified that he did not promise to protect Flemmifrom prosecution, Weber, Flemmi's Lawyer Contends Fed Let HisCrimes Slide, at 10. Rakes and Dammers's argument is well-taken,but falls short. The same denials by the FBI did not preclude theFirst Circuit from holding in McIntyre that local news coveragein Boston and Tulsa contained sufficient facts to allow areasonable person to infer a connection between the FBI's conductand the murder of Roger Wheeler. See McIntyre,367 F.3d at 59-61; see also id. at 61 (holding for purposes of equitabletolling that the government's denials of a "special" relationshipbetween the FBI and Bulger and Flemmi and of any improprietybetween them "were superseded when Morris testified in April 1998in the Salemme hearings that he and Connolly shielded Bulgerand Flemmi from prosecution and that they may have beenresponsible for Halloran's death").

The next question is whether Rakes and Dammers, "in theirdifferent positions, could reasonably be expected to be aware ofthis information." Id. at 59.11

Stephen Rakes, a native of South Boston, has stated in anaffidavit that he did not know that the FBI was implicated as acontributing cause of the extortion until his lawyer told himabout Judge Wolf's Salemme opinion in September or October of 1999. He states that he did not know about the Salemmeproceedings, did not attend the hearings, and did not recallreading any of the press coverage in the record before May 11,1999. Nonetheless, "where events receive . . . widespreadpublicity, plaintiffs may be charged with knowledge of theiroccurrence." United Klans of Am. v. McGovern, 621 F.2d 152,154 (5th Cir. 1980) (cited with approval in McIntyre,367 F.3d at 60). For example, even though Pamela Wheeler did not read anyof the local press coverage of her father's murder, the FirstCircuit held that "[a] reasonable person in Pamela's situationwould have been provoked to inquire further; had she done so, shewould have filed a claim earlier." McIntyre, 367 F.3d at 60-61.The news coverage in Boston of the Salemme proceedings wasextensive and often mentioned Stephen Rakes by name. There isnothing before this Court that would suggest that Rakes did nothave access to the Boston Globe and the Boston Herald duringthe relevant time period. Therefore, guided by McIntyre, thisCourt rules that Rakes had a duty to inquire based on local newscoverage, and had he inquired further, he could have learnedprior to May 11, 1999 the necessary facts underlying the firsttheory of his claim through that coverage.

Julie Dammers, also a native of South Boston, has stated thatshe did not know of a connection between the FBI and theextortion of her store before Judge Wolf's factual findings inthe Salemme opinion. Dammers also asserts that she did not read the news articles in the record. Given the extensiveness of thelocal news coverage, the fact that many of the articlesspecifically mentioned the Rakes family and the extortion, andDammers's access to the Boston Globe and the Boston Herald,this Court rules that Dammers, like her former husband, had aduty to inquire based on local news coverage, and had sheinquired further, she could have learned prior to May 11, 1999the critical facts underlying her first theory of liability.

The Court next turns to Rakes and Dammers's second theory ofliability, namely that the FBI caused the extortion by leaking toBulger information regarding the complaint made by Rakes andDammers to Lundbohm. Rakes and Dammers argue that this theory isanalogous to the theory of liability in the McIntyre case,see McIntyre, 367 F.3d at 54, and thus dependent on thefollowing five facts: (1) Rakes and Dammers reported theextortion by Bulger and Flemmi to the FBI, which imposed a dutyon the FBI; (2) Rakes and Dammers were extorted; (3) Bulger andFlemmi were responsible for the extortion; (4) Rakes and Dammerswere extorted because Bulger learned of their complaint; and (5)It was agents of the FBI, Connolly, or Morris, who told Bulgerthat Rakes and Dammers had reported the extortion. Rakes andDammers's argument that the five basic facts outlined in theMcIntyre case apply to this case is not entirely persuasive. Inthat case, the allegations were that the FBI leaked the identityof a confidential informant to Bulger and Flemmi, thereby enabling the two to murder him. For this reason, point four isespecially awkward when adapted to this case given that most, ifnot all, of the extortionate conduct alleged here took placeprior to the FBI's leak of information to Bulger. In the end,this ill fit seems to come to nothing because Rakes and Dammersdo not appear to dispute that they had or should have hadknowledge of the first four sets of facts. Instead, they focus onpoint five, arguing that sufficient facts were not available fora reasonable person to believe that it was agents of the FBI,Connolly, or Morris, who told Bulger that Rakes and Dammers hadreported the extortion.

Rakes and Dammers argue that sufficient facts were notavailable prior to Judge Wolf's factual findings in Salemme tocause a reasonable person to believe that the FBI leaked Rakesand Dammers's extortion complaint to Bulger. In Salemme, JudgeWolf cited only the testimony of Lundbohm and Ring when makingthe following findings related to the Rakes and Dammersextortion: The Rakes sought Lundbohm's assistance, telling him what occurred. [Lundbohm Sept. 29, 1998 Tr.] at 116. Lundbohm knew that Bulger and Flemmi were reputed to be dangerous members of organized crime. Id. at 138. He felt that the FBI would be the most appropriate law enforcement agency to investigate the ongoing extortion. Id. at 134. He did not know that Bulger and Flemmi were FBI informants, or that Connolly was their handler. Id. at 123, 145. Lundbohm was acquainted with Connolly professionally, knew that he was involved in investigating organized crime and, with the Rakes' consent, decided to speak with Connolly in an effort to prompt an FBI investigation. Id. at 118. Lundbohm related to Connolly what the Rakes had told him. Id. at 119. Connolly asked whether the Rakes would "wear a wire" to record conversations with Bulger, Flemmi, and Weeks. Id. at 119, 126. Lundbohm indicated that he would advise them not to do so. Id. Connolly responded that he would take the information, but did not feel that there was much that the FBI could do. Id. Connolly made no record of the information Lundbohm had provided to him. Nor did he disclose it to Ring, who had become the Acting Supervisor of the Organized Crime squad in January 1983. Ring June 4, 1998 Tr. at 44. Connolly did, however, tell Bulger of his conversation with Lundbohm. Bulger subsequently urged the Rakes to "back off." Lundbohm Sept. 29, 1998 Tr. at 122. Lundbohm correctly inferred that Bulger had learned that the Rakes had been trying to generate an FBI investigation of him. Id. at 122, 139-40.Salemme, 91 F. Supp. 2d at 215-16. The citations in the opinionsuggest that Judge Wolf relied generally on the testimony ofLundbohm in concluding that Connolly told Bulger about hisconversation with Lundbohm.

The substance of both Lundbohm's and Ring's testimonies wasreported in the local newspapers long before the issuance ofSalemme on September 15, 1999, and more importantly, before theMay 11, 1999 accrual date in this case. On May 28, 1998, theBoston Globe, citing Globe interviews and grand jurytestimony read in court, reported in detail the extortion ofRakes and Dammers's store, their complaint to Lundbohm, andLundbohm's report of the extortion to Connolly. According to thearticle, Lundbohm said that he knew Connolly from various caseshe had worked on and had arranged to meet with Connolly. Connollyadmitted in an interview with the Boston Globe that heremembered being told that the Rakes family was threatened intoselling their store, but that "they did not want to get wired upand they did not want to be witnesses." On June 17, 1998, the BostonHerald reported that according to Lundbohm's testimony, afterLundbohm had spoken with Connolly about the extortion, StephenRakes told Lundbohm that "Whitey said to back off." The articlestated that "Lundbohm said he understood that to mean that`Bulger had some knowledge of the conversation with Mr.Connolly.'" It also reported that Lundbohm had testified that theonly other person who knew about his conversation with Connollywas former Boston Police Superintendent Anthony DiNatale.

Although Connolly denied leaking information to Bulger aboutRakes and Dammers's complaint in both the Boston Globe and theBoston Herald on June 17, 1998, an article published by theBoston Globe on July 22, 1998 reported that Lundbohm had saidthat he believed that Connolly had tipped Bulger about theirmeeting. Connolly again denied leaking the information, but thearticle reported that "federal prosecutors said a search of FBIfiles failed to uncover any paperwork on [the incident]." Thearticle concluded that "[i]t appears Connolly made a unilateraldecision to neither investigate the extortion nor pass it alongto a supervisor." This conclusion was supported by Ring'stestimony, as summarized in the Boston Herald on September 23,1998.

The press coverage during the summer and fall of 1998, like thetestimony of Lundbohm and Ring before Judge Wolf in the Salemme proceedings, contained only circumstantial evidencethat the FBI leaked Rakes and Dammers's complaint to Bulger. Thepool of suspects essentially contained three individuals:Connolly, Lundbohm, and DiNatale. Connolly, for his part, deniedtalking to Bulger about the extortion. Given the press coverageof Morris's testimony in the Salemme proceedings regarding hisand Connolly's protection of Bulger, one could reasonablyconclude that Connolly's word on this matter would not be worthmuch. Furthermore, according to Ring's testimony, Connolly actedinappropriately and beyond his authority when he failed to reportor act on Rakes and Dammers's extortion claims. Lundbohm, whofingered Connolly for the leak, could also have been lying. TheBoston Herald reported on June 3, 1998 that Lundbohm wasconvicted in 1990 for taking bribes to protect gamblingactivities in South Boston and the North End. Moreover, Rakesstates in his affidavit that he did not know who leaked theinformation, but he personally suspected Lundbohm. As forDiNatale, nothing in the press coverage contained in the recordsuggests that any witness or news source seriously considered himthe source of the leak.

For the same reasons discussed above in relation to their firsttheory of liability, the Court rules that Rakes and Dammers, intheir different situations, could reasonably be expected to beaware of the information contained in the local press, eventhough they claim not to have read these particular articles. Based on the local press coverage of the extortion ofRakes and Dammers during 1998, reasonable persons in Rakes andDammers's positions would, at a minimum, suspect that Connollytipped Bulger to his meeting with Lundbohm, and this suspicionwould thus trigger a duty to inquire. See McIntyre,367 F.3d at 55. This is not to say that Connolly was more of asuspect than Lundbohm. Rather, persons in Rakes and Dammers'spositions would reasonably suspect Connolly of the leak as well.

Rakes and Dammers have argued that the FBI's denials ofwrongdoing made it unreasonable for persons in their positions tosuspect that the FBI was the source of the leak to Bulger.Although the First Circuit did conclude in the McIntyre wrongfuldeath case that the FBI's denials "further undercut? [thegovernment's] argument that there were sufficient facts beforeMay 25, 1998 to reasonably infer that [the] FBI had betrayedMcIntyre," McIntyre, 367 F.3d at 56, the circumstances thereare distinguishable from the instant case. In the McIntyrecase, the First Circuit observed that there was nothing in thepress to connect the FBI to the leak of McIntyre's identity.See id. at 55-57. Conversely, in this case there wasnewspaper coverage to suggest that Connolly was indeed the sourceof the leak. Therefore, this Court dismisses Rakes and Dammers'scontention that Connolly's denials in the press save theirclaims.

Neither Rakes nor Dammers inquired as to who was the source ofthe leak to Bulger. Had they done so, they would be privy, prior to the accrual date of May 11, 1999, to the testimony ofLundbohm and Ring, as summarized in the local press. Thetestimony of these two witnesses appeared to be enough for JudgeWolf to believe that Connolly had indeed been the source of theleak. See Salemme, 91 F. Supp. 2d at 215-16 (citing only thetestimony of Lundbohm and Ring in support of his findingsregarding the extortion). Beyond this testimony, Rakes andDammers also could have deposed Connolly, Lundbohm, and DiNatale.See Fed.R.Civ.P. 27(a) (allowing for depositions before thefiling of an action). It is unlikely that their attempts to gaininformation about the leak through depositions would "have beenthwarted by invocations of the Fifth Amendment privilege againstself-incrimination," as in the McIntyre wrongful death case.McIntyre, 367 F.3d at 55-56. This is because the statute oflimitations on Rakes and Dammers's extortion in 1984 had alreadyrun by the time the duty to inquire triggered in 1998. See18 U.S.C. § 3282(a); Mass. Gen. Laws ch. 277, § 63. There is nostatute of limitations, by contrast, on McIntyre's murder. See18 U.S.C. § 3281; Mass. Gen. Laws ch. 277, § 63. Accordingly, theCourt concludes that a reasonably diligent investigation wouldhave revealed the necessary factual predicate for Rakes andDammers's second theory of liability before the accrual date.

Finally, the Court turns to Rakes and Dammers's third theory ofliability, namely that the FBI caused the extortion of Rakes andDammers's liquor store by failing to ensure that Connolly and Morris followed FBI Guidelines in their handling of Bulger andFlemmi. This third theory builds on Rakes and Dammers's firsttheory that the FBI protected Bulger and Flemmi from prosecution,which emboldened them to commit crimes, including the extortion.Throughout 1998, local newspapers reported allegations that theconduct of Bulger and Flemmi's handlers violated FBI guidelines,and described FBI supervisors as easily swayed by Connolly'sassurances or as simply out of the loop. At least some of thesearticles should have caught Rakes and Dammers's attention sincethey discuss the extortion of their liquor store.

In a September 30, 1998 article that specifically mentioned theextortion of Rakes and Dammers and Lundbohm's conversation withConnolly, the Boston Globe reported that Flemmi's defenselawyers were arguing that Flemmi and Bulger were "protected bytheir bureau handlers, who violated the agency's own guidelines."The Boston Globe reported on January 9, 1998 that Bulger andFlemmi were "so shielded" by the FBI that supervisor Greenleaf,testified that he was unaware that Bulger and Flemmi had refusedto take polygraph tests in connection with the murders of RogerWheeler and his associate, that he was never told that the twowere implicated in gambling, loansharking, drug dealing, andextortion, and that the FBI never initiated an investigation ofBulger and Flemmi while he was heading up the Boston office from1982 to 1986. On July 22, 1998, the Boston Globe, citingtestimony from the Salemme proceedings and specifically mentioning the extortion of Rakes and Dammers, reported that"[a]lthough there is evidence that Connolly protected Bulger andFlemmi, he was not alone. Supervisors and fellow agents oftenwere swayed by his claim there was insufficient evidence totarget the pair or that they were too valuable to the FBI." Twomonths later, the Boston Herald published an article onSeptember 23, 1998 summarizing the testimony of supervisor Ringregarding the extortion of Rakes and Dammers's store. Accordingto the article, Ring had testified that Connolly was out of linewhen he failed to pass on information regarding Bulger andFlemmi's extortion of Rakes and Dammers, and he was quoted astestifying that he "would have definitely expected (Connolly) tocome to [him] and discuss it . . . He didn't have the authorityto handle that on his own."

This local newspaper coverage, when combined with thepreviously-discussed press coverage of the FBI's protection ofBulger and Flemmi, contains sufficient information to cause areasonable person to believe, before May 11, 1999, that the FBIfailed to ensure that Connolly and Morris followed FBI guidelinesin their handling of Bulger and Flemmi. At a minimum, thesearticles trigger a duty to inquire. Had Rakes and Dammersperformed a reasonably diligent inquiry, they would have beenable to find out through depositions and other research thatConnolly likely violated guidelines by not reporting Rakes andDammers's complaint and that the FBI supervisors kept Connolly and Morris on negligently long leashes. There was enough in thepress to know that guidelines existed and that Connolly andMorris's conduct probably violated them.

The Court, therefore, also rules, for the same reasonsdiscussed previously in this opinion, that Rakes and Dammers, intheir different situations, could reasonably be expected to beaware of this information, even though they claim not to haveread these articles.

D. Duress, Fraudulent Concealment, and Equitable Tolling

Rakes and Dammers's argument that the statute of limitationsshould be tolled under the doctrine of duress is unpersuasive.Duress must be shown by specific factual examples of thedefendant's "coercive acts of threats." Pahlavi v.Palandijan, 809 F.2d. 938, 942-43 (1st Cir. 1987). In spite ofRakes and Dammers's suffering at the hands of both the Gang andFBI agents who covered up the Gang's illegal conduct, tolling thestatute of limitations as a result of their duress would beunprecedented in a case like this. Duress tolls the statute oflimitations in rare cases. Id. at 942. Rakes and Dammers havenot cited any analogous cases involving the FTCA or a suitagainst the government that would sustain their assertions thattheir duress would toll the statute here. Although Rakes andDammers allegedly received threats from the Gang, they offer nofacts upon which this Court can reasonably infer that the UnitedStates used coercive acts of threats against them. Also,Dammers's courage to file a state suit against numerous Gang members in2001 and to testify before a federal grand jury in Rakes's casenumbs her duress claim. Duress thus cannot toll the statute oflimitations in order to save Rakes and Dammers's FTCA claims.

Rakes and Dammers's claim of fraudulent concealment is likewiseunavailing. Fraudulent concealment on the part of the defendanttolls the statute of limitations only when two elements are met:(1) the defendant, relying on the statute of limitations, actedto conceal facts related to its misconduct and (2) the plaintifffailed to discover the misconduct despite acting with duediligence. Gonzalez v. United States, 284 F.3d at 292. Sincethis Court has held that Rakes and Dammers should have known ofsufficient facts underlying their theories of liability prior toMay 11, 1999 under the objective accrual test of McIntyre, itfollows that Rakes and Dammers fail to meet the second prong ofthe fraudulent concealment test because they were not acting withdue diligence.

Finally, Rakes and Dammers claim of equitable tolling based onthe FBI's numerous denials of wrongdoing fails for the samereasons expressed by the First Circuit in the Wheeler case: The claim of equitable tolling of the two-year limit fails, to the extent that such a claim is cognizable against the government at all. It is true that the FBI had a long history of denying that Bulger and Flemmi were informants, that there was any "special" relationship between the FBI and the two, and then that any impropriety resulted from the relationship. For purposes of equitable tolling, however, the government's denials were superseded when Morris testified in April 1998 in the Salemme hearings that he and Connolly shielded Bulger and Flemmi from prosecution and that they may have been responsible for Halloran's death.McIntyre, 367 F.3d at 61 (internal footnote omitted). Guided bythe First Circuit's approach in McIntyre, this Court rules thatMorris's 1998 testimony in the Salemme hearings undermined theFBI's previous denials of wrongdoing in relation to theirhandling of Bulger and Flemmi. Thus, Rakes and Dammers's claim ofequitable tolling fails to the extent it is even available tothem in an FTCA suit. See id. at 61 n. 8 (comparing Irwinv. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990) (notingthat equitable tolling applies to Title VII suits against thegovernment), with United States v. Beggerly, 524 U.S. 38,49-50 (1998) (holding for reasons that could also apply to theFTCA that equitable tolling does not apply to suits under theQuiet Title Act, 28 U.S.C. § 2409a)). III. CONCLUSION

In McIntyre, the First Circuit applied a harsh anduncompromising objective test to a record of press disclosuresidentical in all relevant respects to that before this Court.This Court is constrained to follow the McIntyreanalysis.12 Accordingly, the United States' RenewedMotion to Dismiss the FTCA claims as time-barred [Doc. No. 179]is ALLOWED, and the United States' Motion for Summary Judgment onthe FTCA claims [Doc. No. 195] is thus rendered MOOT. SO ORDERED.

1. Unless otherwise noted, all docket numbers refer to filingsin the Rakes docket.

2. Many of the facts cited in the plaintiffs' opposition aretaken from admissions made by the government in its Response toPlaintiffs' First Request for Admissions, dated June 14, 2004.Other facts are taken from admissions that Court has deemed thegovernment to have made in its Order, dated October, 21, 2004.

3. The United States couches Rakes and Dammers's FTCA claimssolely in terms of a negligent failure to act. This is toorestrictive a reading. Rakes and Dammers have not only allegedthat the defendants have made improper omissions, but also thatthe defendants took affirmative steps to shelter and toencourage Bulger and Flemmi in their criminal activities,including extortion. Rakes and Dammers have also made variousintentional tort claims which the United States has not addressedhere. Accordingly, the Court here only considers the UnitedStates' argument in terms of Rakes and Dammers's claim that theFBI negligently failed to act.

4. See generally Restatement (Second) of Torts § 314 cmt. a(1965) ("The general rule stated in this Section should be readtogether with other sections which follow. Special relations mayexist between the actor and the other, as stated in § 314 A,which impose upon the actor the duty to take affirmativeprecautions for the aid or protection of the other. The actor mayhave control of a third person, or of land or chattels, and beunder a duty to exercise such control, as stated in §§ 316-320.The actor'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.").

5. In support of their position that a duty of care exists,Rakes and Dammers also cite the Supreme Judicial Court's decisionin Bellows v. Worcester Storage Co., 297 Mass. 188 (1937). Inthat case, a depositor of goods brought a negligence actionagainst a warehouse for the loss of her goods where a thirdperson, while temporarily insane, broke into the warehousethrough a damaged door and set the place on fire. The courtexplained: There can be no question that negligence may consist in a failure to guard against the wrongful and even criminal acts of third persons. In Sojka v. Dlugosz[, 293 Mass. 419 (1936)], recovery was permitted against a father who left a rifle accessible to his thirteen year old son and ought to have foreseen his negligent use of it. . . . In Morse v. Homer's, Inc.[, 295 Mass. 606 (1937)], a bailee was held liable for failure to guard against a robbery, the likelihood of which ought to have been foreseen.Id. at 195. Rakes and Dammers argue that Bellows stands forthe proposition that Massachusetts law recognizes a privateperson's duty to protect others from the foreseeable criminalacts of third persons. Bellows does not go that far. The courtin Bellows recognized from the outset that the warehouse ownerhad a statutory duty to "`exercise such care in regard to' theplaintiff's goods `as a reasonably careful owner of similar goodswould exercise.'" Id. at 195 (quoting Mass. Gen. Laws ch.105, § 27).

6. As Judge Lindsay explained in Davis: The Supreme Judicial Court cited [section 315(a)] with approval in Jean W. . . . and was prepared to apply it to claims brought under the Massachusetts Tort Claims Act. Before the ruling in Jean W. was effective, the legislature abrogated Jean W. by enacting M.G.L. ch. 258, § 10(h)-(j), greatly limiting the circumstances under which public employees can be liable for failing to provide police protection. There is no indication, however, that § 315(a) is not a basis for liability of a private person or entity.Davis, 340 F. Supp. 2d at 91 n. 9.

7. The United States argues that no such "specialrelationship" exists in this case between the Rakes and Dammersand the FBI. The United States emphasizes that Massachusettscourts have usually imposed a duty to use reasonable care toprotect others from injury in cases involving "the defendant'sbusiness enterprise or ownership of land, not its relationship toa third party whose criminal acts have allegedly harmed theplaintiff." Def.'s Mem. at 19-20 (collecting cases). Rakes andDammers argue that a special relationship did exist betweenthemselves and the FBI based on their report of Bulger andFlemmi's extortion of the liquor store. Pls.' Opp'n at 18. Rakesand Dammers's theory seems plausible given that a duty not to actnegligently "extends to those who have relied in some special wayupon the defendant, to those whom defendants have helped to placein a position where they are likely to depend upon his avoidingnegligent omissions." Carrier, 721 F.2d at 868-69. Theirposition is weakened considerably, however, by the fact that theynever directly reported the extortion to the FBI, relying insteadon Detective Lundbohm.

8. This of course assumes that Rakes and Dammers can presentevidence that they have suffered physical harm. Section 315,like section 321 discussed earlier, contemplates negligentconduct that results in physical harm. The United States has notchallenged the sufficiency of the evidence on this point,therefore the Court does not address it here.

9. These cases originally alleged Bivens claims againstcertain individual defendants. See Bivens v. Six UnknownNamed Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971). Under this theory, in order for the Court to find asubstantive due process violation, the conduct of governmentactors must "shock the conscience." Aversa v. United States,99 F.3d 1200, 1215 (1st Cir. 1996); see Brown v. Hot, Sexyand Safer Prods., Inc., 68 F.3d 525, 531 (1st Cir. 1995)(citations omitted). Groping for such a test applicable to thiscase, the Court opined: Here's the standard as best I can state it. When a governmental actor has probable cause to believe that a wrongdoer has committed the crime of murder and does not initiate criminal proceedings, more than that, and knows of a substantial likelihood, not probable cause but a substantial likelihood that this same individual will murder again, and then, third, does not initiate criminal proceedings against the wrongdoer, when that governmental actor, one, is not faced with exigent circumstances, has adequate resources to take the wrongdoer into custody, without undue risk to himself, the community or the wrongdoer himself, and fails to act, not through negligence, but for some perceived governmental benefit, then the government is liable and indeed the governmental actor is liable under Bivens, for harm, including harm, reasonably foreseeable harm, this would have to be reasonably foreseeable, but all sorts of harm that the unapprehended wrongdoer thereafter commits to and including the extortion here.Transcript of hearing, October 25, 2004 at 13. The Court went onto say: That's the standard that I propose to apply when you come on to argue your motions, your . . . motions for summary judgment on this issue [, i.e. the issue of government liability under the FTCA]. And recognizing that trial is now in the near future, I propose to act promptly, maybe with an opinion to follow, but I propose to act promptly on these motions. . . . . The matter is all up for argument. I simply try to tell you the current state of my thinking.Id. at 13-14. True to its word, during oral argument on this motion forsummary judgment, the Court braced government counsel: THE COURT: [T]here would have to be a deliberate inaction on the part of a government actor, after probable cause to believe that the evildoer had committed a murder or murders and was likely to murder again before any liability could be imposed, and the other thing I've already ruled and said, they had the capacity to take them into custody without undue risk. If they meet all those it would seem to me liability would attach. . . . . The duty of government since feudal time is to protect the [safety] of its citizens. Government simply is not empowered among men and women to choose who it will protect and who it will allow to be murdered. Government officials cannot make that choice absent exigent circumstances. They cannot. It's the basic compact between the people and their government. The government may fail. The government may be negligent. No recovery here. But if government actors intentionally refrain, pursuing some other goal, from taking these people into custody, knowing it was likely they would murder again, then it seems to me that the government, a government that would do that is liable for the harm.Transcript of motion hearing, November 16, 2004 at 5-7. The trouble with all this was that the Bivens allegations hadvoluntarily been withdrawn by the plaintiffs before the motionhearing and, as government counsel patiently pointed out, theCourt was here erroneously conflating a standard for determiningwhat "shocks the conscience" for a substantive due processviolation under Bivens with a standard for government liabilityunder the FTCA. The two standards are entirely different and, given a chance toreflect, the Court readily confesses its error. Whatever thevalue of the standard just enunciated to a Bivens analysis, ithas no place in the FTCA analysis under Massachusetts law. It istrue that since feudal times, see F.L. Ganshof, Feudalismxv-xviii (Philip Grierson trans., Longmans, Green & Co. 1stEnglish ed. 1952) (1944), it has been recognized that governmentsprimarily exist to secure the safety of their citizens, seeThomas Hobbes, Leviathan ch. 30 at 231 (Richard Tuck ed.,Cambridge Univ. Press 1991) (in English) ("Summi imperantisofficia . . . manifeste indicat institutionis finis nimirum saluspopuli" or "The office of the soveraign . . . consisteth in theend, for which he was trusted with the soveraign power, namelythe procuration of the safety of the people."); The FederalistNo. 3, at 42 (John Jay) (Clinton Rossiter ed., 1961) ("Among themany objects to which a wise and free people find it necessary todirect their attention, that of providing for their SAFETY seemsto be the first."); The Federalist No. 8 (Alexander Hamilton), at67 ("Safety from external danger is the most powerful director ofnational conduct. Even the ardent love of liberty will, after atime, give way to its dictates."); Charles de Secondat, Baron deMontesquieu, The Spirit of the Laws (Thomas Nugent trans., J.V.Prichard, ed., G. Bell & Sons, Ltd. 1914). This, however, is thegeneral relationship of a government to its citizens, not thespecial relationship that forms an exception to the general ruleon no tort liability for inaction.

10. The United States also argues that Rakes and Dammers hadactual knowledge of the critical facts underlying their FTCAclaims. The issue of actual knowledge, as it relates to Dammers,was already considered by this Court in the United States' firstmotion to dismiss on statute of limitations grounds, and thisCourt sees no need to revisit it. For reasons set forth in thisopinion, the Court need not reach the issue of whether Rakes hadactual knowledge.

11. The parties do not appear to dispute that Rakes andDammers's knowledge of their injury and its cause should beimputed to their children, Nichole, Meredith, and Colby.

12. While the FTCA incorporates Massachusetts law, counselappearing in the courts of the Commonwealth should neither citeMcIntyre nor this decision as representing the Massachusettsapproach to the "discovery rule" in statute of limitationslitigation. This is because the Massachusetts courts themselvestake a more generous, remedial view of the discovery rule, seee.g. Riley v. Presnell, 409 Mass. 239, 240, 244-46 (1991)("A cause of action will accrue when the plaintiff actually knowsof the cause of action or when the plaintiff should have known ofthe cause of action. . . . Accrual of the cause of action occurswhen the ordinary reasonable person who had been subject to theexperience would have discovered that the injury was caused bythat experience."); Bowen v. Eli Lilly & Co., Inc.,408 Mass. 204, 208-09 (1990) ("We do not require that a plaintiff havenotice of a breach of a duty before a cause of action may accrue,but we do require that a plaintiff have (1) knowledge orsufficient notice that she was harmed and (2) knowledge orsufficient notice of what the cause of harm was."); Castillo v.Mass. Gen. Hosp., 38 Mass. App. Ct. 513, 516-17 (1995) (same);Sawyer v. Indevus Pharms., Inc., No. 03-5028-B, 2004 WL1739405, at *15 (Mass.Super.Ct. July 26, 2004) (Brassard, J.)(noting the crucial moment as "the first time there was anyindication of injury conveyed to these plaintiffs."). ThisCourt, however, is here constrained to apply the First Circuitview of Massachusetts law since McIntyre analyzes a recordvirtually identical to that presented here.

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