Donahue v. Connolly

Decision Date13 September 2012
Docket NumberCivil Action No. 01–10433–WGY.
Citation890 F.Supp.2d 173
PartiesPatricia DONAHUE, Individually and in her capacity as Administratrix of the Estate of Michael J. Donahue, Michael T. Donahue, Shawn Donahue, Thomas Donahue, Plaintiffs, v. John J. CONNOLLY, Jr., John M. Morris, Lawrence Sarhatt, Robert Fitzpatrick, Federal Bureau of Investigation, and the United States of America, Defendants.
CourtU.S. District Court — District of Massachusetts

OPINION TEXT STARTS HERE

William A. Brown, Boston, MA, A. Douglas Matthews, Westport, MA, for Robert Fitzpatrick.

William E. Christie, Shaheen & Gordon, P.A., Concord, NH, for The Estate of Edward Brian Halloran.

Noel B. Dumas, Tory A. Weigand, Morrison Mahoney LLP, Boston, MA, for Lawrence Sarhatt.

Lawrence Eiser, Bridget Bailey Lipscomb, U.S. Department of Justice, Mary McElroy Leach, Civil Division, U.S. Dept. of Justice, Washington, DC, for U.S.A.

Robert A. George, Robert A. George & Associates, PC, Edward T. Hinchey, Sloane & Walsh, Boston, MA, Christopher T. Meier, Cooper Cargill Chant PA, North Conway, NH, for Plaintiffs.

Dean A. Mazzone, Attorney General's Office, Boston, MA, for Attorney General of Massachusetts and Suffolk, Norfolk, and Middlesex Districts of Massachusetts.

E. Peter Mullane, Mullane, Michel & McInnes, Cambridge, MA, for John J. Connolly, Jr.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Lawrence Sarhatt, a defendant in a Bivens claim brought by the family of Michael J. Donahue, moves for final judgment on the claims against him on the ground that they are barred by the Federal Tort Claims Act (the “Act” or “FTCA”) judgment bar, 28 U.S.C. § 2676. The Court originally granted summary judgment in favor of the Donahues and awarded damages against the United States on the FTCA claim, but the First Circuit reversed and dismissed the claim as barred by the statute of limitations. Donahue v. United States, 634 F.3d 615 (1st Cir.2011). The Donahues argue that their Bivens claim is not precluded, as the judgment bar of the FTCA would apply only where a plaintiff is successful in his or her FTCA claim, which they were not. Alternately, the Donahues argue that the judgment bar does not apply here because the judgment was jurisdictional in nature and not “on the merits.”

A. Relevant Procedural History

Patricia Donahue filed suit individually and as Administratrix of the Estate of Michael J. Donahue against the Federal Bureau of Investigation, John J. Connolly, Jr., John M. Morris, Lawrence Sarhatt, and Robert Fitzpatrick on March 12, 2001. Compl. Demand Jury Trial (“Compl.”), ECF No. 1. Joining Patricia Donahue as plaintiffs were Michael T. Donahue, Shawn Donahue, and Thomas Donahue. Id. The case was assigned to Judge Lindsay (“the court). Id. The initial complaint alleged violations of constitutional rights under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), violations of the federal Racketeering Influence and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., conspiracy violations and violations of state law. Compl. 2. The plaintiffs also concurrently filed a Presentment of Claims letter to the Federal Bureauof Investigation under the Federal Tort Claims Act. See id. at 2. The FTCA claims were expressly and intentionally omitted from the initial complaint. Id. The court permitted the defendant Lawrence Sarhatt (Sarhatt) and others to file their initial answers months later in October 2001. E.g., ECF No. 22.

The plaintiffs amended their complaint on October 25, 2001, to include wrongful death and emotional distress claims asserting liability under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 & 2671 et seq., in addition to the original claims. Am. Compl. Demand Jury Trial, ECF No. 29. A Second Amended Complaint was filed on May 28, 2002. Second Am. Compl. Demand Jury Trial, ECF No. 68. After many delays,1 varied motions for reconsideration, and heated discovery skirmishes, the case proceeded, and Sarhatt filed his answer to the Second Amended Complaint on April 11, 2003. Def. Lawrence Sarhatt's Answer Second Am. Compl. Demand Jury Trial, ECF No. 135.

The United States moved to dismiss the claims against it for lack of subject matter jurisdiction, and the court denied the motion in December 2004. 2 Electronic Order, Dec. 1, 2004. In 2007, the Donahues moved for summary judgment against the United States and the court granted this motion in November 2007. Clerk's Notes, Nov. 19, 2007 (granting Pls.' Joint Mot. Summ. J., ECF No. 195). The court held a four day bench trial on damages, but prior to ruling on the case, Judge Lindsay passed away and the case was reassigned to this Session of the Court (the Court). See Order, ECF No. 233. This Court reviewed the transcript of the record before the late Judge Lindsay, and heard closing argument from the parties on May 1, 2009. Clerk's Notes, Apr. 14, 2009; Clerk's Notes, May 1, 2009. The Court ordered judgment to issue in the amount of $6,435,100.00. Clerk's Notes, May 1, 2009.

Sarhatt then moved for an entry of final judgment, Def. Lawrence Sarhatt's Mot. Entry Final J., ECF No. 239, which the Court initially granted, Electronic Order, May 19, 2009. The Donahues moved for reconsideration “so that in the unlikely event that the First Circuit remands FTCA judgment or reverses the judgment on procedural grounds, the plaintiffs will be able to pursue their Bivens claims, as is their right.” Mot. Pls., Estate Michael Donahue, et al., Recons. Court's Order Granting Def.'s Lawrence Sarhatt's Mot. Entry Final J. 1, ECF No. 240. The Court granted the Donahue's motion, but administratively closed the case against Sarhatt until the appeal of judgment against the United States was decided. Electronic Order, June 8, 2009. Upon the assented to motion of the United States, the Court entered an order granting partial final judgment that the United States was liable under the FTCA for the wrongful death of Michael J. Donahue in the amount of $6,435,100.00. Order, ECF No. 251. In June 2010, the United States appealed. See Notice Appeal, ECF No. 252.

On appeal, the First Circuit reversed this Court's partial final judgment and granted the United States' earlier motion to dismiss on the ground that the claims were time barred under the FTCA. Donahue, 634 F.3d at 630; Mandate, ECF No. 258 (entering judgment for the United States on October 14, 2011). The First Circuit held that the Donahues' critical accrual date was September 2, 1998,3id. at 625, and thus their action brought on March 29, 2001, failed to meet the statute of limitations in the FTCA, id. at 630. The plaintiffs petitioned the First Circuit for rehearing en banc, but the petition was denied.

On February 6, 2012, Sarhatt moved for judgment as matter of law, Def. Lawrence Sarhatt's Mot. Entry Final J., ECF No. 259, and the Donahues opposed his motion, Opp'n Pls., Estate Michael Donahue, et al., Def. Lawrence Sarhatt's Mot. Entry Final J. (“Opp'n Mem.”), ECF No. 260. This Court heard oral argument on Sarhatt's motion on May 16, 2012 and took the matter under advisement.

B. Facts

This case arises out of the FBI's confirmed misconduct in handling informants James “Whitey” Bulger and Stephen “the Rifleman” Flemmi. The First Circuit opinion in this case summarizes the many sordid details. Donahue, 634 F.3d at 615–621. As the issues in this motion are purely legal, this Court need not further restate the facts.

II. ANALYSISA. The Federal Tort Claims Act

The Federal Tort Claims Act expressly waives sovereign immunity for private suits seeking money for personal injury or death caused by a negligent or wrongful act of a government employee acting within the scope of his or her employment. 28 U.S.C. §§ 1346 et seq.; e.g., Davis v. United States, 670 F.3d 48, 52 (1st Cir.2012). Historically, the rule of sovereign immunity was absolute with respect to tort claims against the government; 4 when individuals were egregiously harmed by a government employee, the only recourse was to petition Congress for private relief. 1–2 Jayson & Longstreth, Handling Federal Tort Claims § 2.01. In response to this significant drain on Congress's time, numerous bills waiving sovereign immunity for torts were proposed, occasionally passed by one chamber of Congress, and on one occasion vetoed for procedural reasons. Tort Claims: Hearings on H.R. 5373 and H.R. 6463 Before the H. Comm. on the Judiciary, 77th Cong. 25 (1942) (“Hearings on H.R. 5373 and H.R. 6463).

The Federal Tort Claims Act was finally passed in 1946, and “was the offspring of a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work.” Dalehite v. United States, 346 U.S. 15, 24, 73 S.Ct. 956, 97 L.Ed. 1427 (1953)overruled in part on other grounds by Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957).

Legislative discussion of the Act focused on the need to avoid private bills in Congress while providing relief to appropriate claimants. E.g., H.R.Rep. No. 79–1287, at 2 (1945) (including the purpose and history of the legislation) (“For many years the present system has been subjected to criticism, both as being unduly burdensome to the Congress and as being unjust to the claimants, in that it does not accord to injured parties a recovery as a matter of right but bases any award that may be made on considerations of grace.”).

In most cases, an FTCA action is the exclusive civil remedy available against government employees acting within the scope of their employment. 28 U.S.C. § 2679(b)(1). The Act includes an exception, however, for claims “brought for a violation of the Constitution of the United States.” McIntyre v. United States, 447 F.Supp.2d 54, 61 (D.Mass.2006) (Lindsay, J.) (quoting 28 U.S.C. § 2679(b)(2)(A)) aff'd and remanded sub nom., McIntyre ex rel. Estate of McIntyre v. United States, 545 F.3d 27 (1st Cir.2008). The exception permits plaintiffs to...

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