367 F.3d 38 (1st Cir. 2004), 03-1791, McIntyre v. United States

Docket Nº:03-1791, 03-1823.
Citation:367 F.3d 38
Party Name:Emily McINTYRE, as Administrator of the Estate of John L. McIntyre; Christopher McIntyre, as Co-administrator of the Estate of John L. McIntyre, Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee, H. Paul Rico; John Morris; John J. Connolly; Roderick Kennedy; Robert Fitzpatrick; James Ring; James Greenleaf; James Ahearn; Kevin
Case Date:May 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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367 F.3d 38 (1st Cir. 2004)

Emily McINTYRE, as Administrator of the Estate of John L. McIntyre; Christopher McIntyre, as Co-administrator of the Estate of John L. McIntyre, Plaintiffs, Appellants,

v.

UNITED STATES of America, Defendant, Appellee,

H. Paul Rico; John Morris; John J. Connolly; Roderick Kennedy; Robert Fitzpatrick; James Ring; James Greenleaf; James Ahearn; Kevin J. Weeks; James J. Bulger; Stephen Flemmi; John Does, Nos. 1-50, Defendants.

Lawrence A. Wheeler, Individually and as Special Administrator of the Estate of Roger M. Wheeler; Patricia J. Wheeler, Individually and as Special Administratrix of the Estate of Roger M. Wheeler; Pamela (Wheeler) Norberg; David B. Wheeler; Mark K. Wheeler, Plaintiffs, Appellants,

v.

United States of America, Defendant, Appellee,

John J. Connolly, Jr.; John M. Morris; H. Paul Rico; Robert Fitzpatrick; James A. Ring; James Greenleaf; James Ahearn; James J. Bulger, a/k/a Whitey; Stephen J. Flemmi, a/k/a The Rifleman; John V. Martorano; John Does, Nos. 1-50, Defendants.

Nos. 03-1791, 03-1823.

United States Court of Appeals, First Circuit

May 10, 2004

Heard March 2, 2004.

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William E. Christie, with whom Steven M. Gordon and Shaheen & Gordon, P.A. were on brief, for appellants Emily McIntyre and Christopher McIntyre.

Richard A. Olderman, Attorney, Appellate Staff, with whom Robert S. Greenspan, Attorney, Appellate Staff, Peter D.

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Keisler, Assistant Attorney General, and Michael J. Sullivan, United States Attorney, were on brief, for appellee United States in the McIntyre case.

Frank A. Libby, Jr., with whom Douglas S. Brooks and Kelly, Libby & Hoopes, P.C. were on brief, for appellants Lawrence A. Wheeler, Patricia J. Wheeler, Pamela (Wheeler) Norberg, David B. Wheeler, and Mark K. Wheeler.

Richard A. Olderman, Attorney, Appellate Staff, with whom Robert S. Greenspan, Attorney, Appellate Staff, Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan, United States Attorney, and Jeffrey S. Bucholtz, Deputy Assistant Attorney General, were on brief, for appellee United States in the Wheeler case.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

These two cases involve claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., arising out of alleged wrongful actions of FBI agents.

On September 15, 1999, a diligent federal trial judge sitting in an organized crime case issued a lengthy opinion outlining a possible pattern of corruption involving at least two FBI agents, John Connolly and his supervisor John Morris, and two notorious Boston criminals, James "Whitey" Bulger and Stephen "the Rifleman" Flemmi. See United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999). Such corruption had been rumored but had been denied by the FBI.

The 1999 opinion by Judge Wolf revealed that Bulger and Flemmi, who were leaders of the Winter Hill Gang, a crime syndicate involved in murder, bribery, extortion, loansharking, and gambling operations, had been high-level FBI informants since the 1970s, aiding the agency in its investigation of La Cosa Nostra, a rival crime syndicate. The opinion raised the prospect that Bulger and Flemmi had received numerous benefits from the FBI in return, including protection from prosecution, and at times, access to the names of informants who were themselves providing information to the FBI about the criminal activities of Bulger and Flemmi. Id. at 148-63, 322. Some of the informants may have been killed as a result, and the murderous activities of Bulger and Flemmi covered up. Id. at 208-13.

The opinion speculated that Agent Connolly may have disclosed to Bulger and Flemmi the identity of an individual, John McIntyre, who was an informant for the local Quincy police and was debriefed by the FBI, United States Customs Service, and the Drug Enforcement Administration (DEA). Id. at 213-15. McIntyre disappeared roughly six weeks after an October 17, 1984 interview with FBI Agent Roderick Kennedy, in which McIntyre had linked Bulger to gun-running and drug-smuggling operations. Id. His body was found fifteen years later, on January 14, 2000, in a makeshift grave near Boston. But the opinion, published in September 1999, ultimately concluded that it could not be determined whether FBI Agent Kennedy had, in fact, shared this information about McIntyre with Connolly and whether Connolly, in turn, had told Bulger. Id. at 214-15. That was because, as the court said later, "important FBI documents concerning John McIntyre were ... improperly withheld by agents of the Boston FBI until it was too late to question relevant witnesses concerning them." United States v. Flemmi, 195 F.Supp.2d 243, 249-50 (D.Mass.2001).

The opinion also indicated the likelihood that Agent Connolly had disclosed to Bulger

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the name of another informant as to Bulger's crimes, Brian Halloran. In January 1982, Halloran told two FBI agents that Bulger and Flemmi had caused the 1981 murder of a Tulsa businessman, Roger Wheeler. Connolly learned of Halloran's cooperation and disclosed it to Bulger. Halloran was murdered in May 1982. Salemme, 91 F.Supp.2d at 208-210. Agent Morris testified to this sequence of events in hearings before Judge Wolf in April 1998.

Agent Connolly was indicted on October 11, 2000 and charged with numerous crimes, including "alert[ing] Bulger and Flemmi to the identity of confidential law enforcement informants in order to protect Bulger's and Flemmi's ongoing criminal activities" and taking other steps to protect Bulger and Flemmi. Connolly was charged with inducing Agent Morris to do the same, in violation of Morris's legal obligations. Among the several racketeering acts charged was that Connolly had told Bulger and Flemmi of Halloran's statements that Bulger and Flemmi had caused Wheeler's murder. In turn, the indictment charged, Bulger caused Halloran to be murdered. Connolly was convicted, and his conviction was affirmed on appeal. United States v. Connolly, 341 F.3d 16 (1st Cir. 2003).

On May 25, 2000, the estate of John McIntyre, through its administrator (McIntyre's mother, Emily McIntyre) and co-administrator (McIntyre's brother, Christopher McIntyre), filed an administrative claim against the United States under the FTCA.1 The essence of the theory behind the claim was that the FBI had (i) directly caused the death of John McIntyre, when Agent Connolly informed Bulger and Flemmi that McIntyre was cooperating with certain authorities investigating Bulger and Flemmi, thus signing McIntyre's death warrant, and (ii) indirectly caused McIntyre's death through the protection the FBI afforded Bulger and Flemmi, which encouraged and enabled them to commit murders, including that of McIntyre.2 A second administrative complaint was filed on June 8, 2000.

On May 11, 2001, the estate of Roger Wheeler, the murdered Tulsa businessman, filed an administrative claim under the FTCA against the United States. The theory of the claim was that the FBI's illicit protection of Bulger and Flemmi had facilitated the murder of Roger Wheeler.3 This legal theory differed from that articulated in the McIntyre case, as there was no direct relationship between the FBI and Wheeler.

The United States failed to act on either claim within the required six-month period, thus giving both estates the option, which they took, of treating those claims as having been denied. See 28 U.S.C. § 2675(a). In due course, both filed suit against the United States as well as various FBI agents in the Boston office, Bulger,

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Flemmi, and other members of the Winter Hill Gang.

McIntyre's claims against the United States consisted of (1) three counts under Mass. Gen. Laws ch. 229, § 2 for civil conspiracy, negligence, and supervisory liability, causing McIntyre's death and (2) three counts under Mass. Gen. Laws ch. 229, § 6, corresponding to the three counts under § 2, for negligently causing McIntyre's conscious suffering while he was kidnapped, tortured and killed.

The claims of the Wheeler estate were joined by Roger Wheeler's widow and four of his five children, suing individually.4 The Wheelers' claims against the United States sought to hold it directly and vicariously liable for (1) two counts of tortious conduct causing Wheeler's death under Mass. Gen. Laws ch. 229, § 2; (2) two counts of causing Roger Wheeler's conscious suffering the moments immediately before his murder under Mass. Gen. Laws ch. 229, § 6; and (3) one count of causing emotional distress to Wheeler and his family.

The United States moved to dismiss in both suits on the ground that neither set of plaintiffs filed their administrative claims within the required two-year period from the accrual of the cause of action. See 28 U.S.C. § 2401(b). The district court agreed in both cases. McIntyre v. United States, 254 F.Supp.2d 183, 193 (D.Mass.2003); Wheeler v. United States, No. 02-10464-RCL (D.Mass. March 31, 2003). This consolidated appeal is from the dismissals of the FTCA claims against the United States and reviews the single issue, on two sets of facts, of when the claims "accrued" for FTCA purposes. To be timely, the McIntyre claims had to accrue on or after May 25, 1998, and the Wheeler claims on or after May 11, 1999.

I.

The following facts are presented in the light most favorable to the plaintiffs. See Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003). The facts are drawn from the two complaints and the materials submitted to the district court on the respective motions to dismiss. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002) (on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), the court may look to supplemental...

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