Mcintyre v. U.S.

• Decision Date: 31 March 2003
• Docket Number: No. CIV.A. 01-10408 RCL.,CIV.A. 01-10408 RCL.
• Citation: 254 F.Supp.2d 183
• Parties: Emily McINTYRE, and Christopher McIntyre, as co-administrators of the Estate of John L. McIntyre Plaintiffs, v. The UNITED STATES of America, H. Paul Rico, John M. Morris, John J. Connolly, Roderick Kennedy, Robert Fitzpatrick, James Ring, James Greenleaf, James Ahearn, Kevin J. Weeks, James J. Bulger, Stephen J. Flemmi, and John Does, Number 1-50, Defendants.
• Court: U.S. District Court — District of Massachusetts

254 F.Supp.2d 183

Emily McINTYRE, and Christopher McIntyre, as co-administrators of the Estate of John L. McIntyre Plaintiffs, v. The UNITED STATES of America, H. Paul Rico, John M. Morris, John J. Connolly, Roderick Kennedy, Robert Fitzpatrick, James Ring, James Greenleaf, James Ahearn, Kevin J. Weeks, James J. Bulger, Stephen J. Flemmi, and John Does, Number 1-50, Defendants.

No. CIV.A. 01-10408 RCL.

United States District Court, D. Massachusetts.

March 31, 2003.

Steven M. Gordon, William E. Christie, Shaheen & Gordon, P.A., Concord, Jeffrey A. Denner, Denner Sayeg, LLP, Boston, George L. Garfinkle, Brookline, for Emily McIntyre, as Administrator of the Estate of John L. McIntyre, Christopher McIntyre, in his capacity as Co-Administrator of the Estate of John L. McIntyre, Plaintiffs.

Peter Schlossman, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, John Morris, [Pro se], Niceville, FL, Edward J. Lonergan, Boston, E.P. Mullane, Mullane, Michel & McInnes, Cambridge, Stephen C. Pfaff, Douglas I. Louison, Merrick, Louison & Costello, Boston, Thomas C. Tretter, Healey, Deshaies & Gagliardi, PC, Amesbury, James W. Simpson, Jr., Merrick, Louison & Costello, Boston, A. Douglas Matthews, Fall River, Alan D. Rose, Jr., Rose & Associates, Boston, Roach & Carpenter, P.C., Boston, Brian P Fitzsimmons, Hanley, Hassett & Fitzsimmons, LLC, Milton, K.W., Watsontown, PA, Stephen J. Flemmi, [Pro se], MCI Cedar Junction Corrections Facility, Walpole, for USA, H. Paul Rico, John Morris, John J. Connolly, Roderick Kennedy, Robert Fitzpatrick, James Ring, James Ahearn, Kevin J. Weeks, Stephen J. Flemmi, Defendants.

MEMORANDUM AND ORDER ON UNITED STATES' MOTION TO DISMISS

LINDSAY, District Judge.

I. Introduction

This is a suit filed by the Estate (the "Estate") of John L. McIntyre ("John McIntyre" or "McIntyre"), of which McIntyre's mother, Emily McIntyre, and his brother, Christopher McIntyre, are co-administrators (the "plaintiffs"). The defendants are the United States of America ("United States"); several individuals, who at the times relevant to the complaint were agents of the Federal Bureau of Investigation ("FBI"); and three alleged members of the Winter Hill Gang, an alleged criminal organization. The plaintiffs' claims relate to the 1984 homicide of John McIntyre. The complaint asserts fourteen counts (numbered from one to thirteen, with two counts numbered "ten"), of which seven are asserted against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The common theme of all of the counts against the United States is that acts or omissions of the United States and its agents proximately caused the homicide of John McIntyre and the kidnapping and torture of him that preceded his death. The United States has moved to dismiss all counts against it under Fed.R.Civ.P. 12(b)(1).

II. Background

According to the complaint, John McIntyre was the engineer on a ship called the Valhalla that had been used to attempt to deliver weapons from Massachusetts to the Irish Republican Army ("IRA") in Ireland. Compl. ¶ 245. In mid-October 1984, McIntyre revealed this information to Richard Bergeron ("Bergeron") of the Quincy Massachusetts Police Department and began to cooperate with the police. Id. McIntyre told Bergeron that Joseph Murray ("Murray") the owner of the Valhalla, was connected to James J. Bulger ("Bulger"), an alleged leader of the Winter Hill Gang, and that Bulger, through his alleged criminal associates Kevin Weeks ("Weeks") and Patrick Nee ("Nee"), was involved in the Valhalla arms shipment. Id. 1246. Bergeron arranged for agents from the United States Customs Service and the FBI to participate in the questioning of McIntyre. Id. 1249. The complaint alleges that in October or November 1984, Bulger and his associates became aware that McIntyre was cooperating with the authorities and informing them about illegal activities carried out by Bulger and his associates. Id. ¶ 255. As a result, Bulger and another alleged criminal associate, Stephen Flemmi ("Flemmi"), Weeks and others kidnapped, tortured, and murdered McIntyre on or about November 30, 1984. Id. 11256. At the time of McIntyre's murder, Bulger and Flemmi were both confidential informants for the FBI; the defendant John J. Connolly, then an FBI special agent, was their "handler." Id. H 83. The complaint alleges that Connolly and other FBI agents and the FBI itself were at best negligent in failing to control Bulger and Flemmi and in failing to protect John McIntyre, id. ¶ 378, and at worse deflected and squelched prosecutions and criminal investigations of Bulger and Flemmi and provided information to them about confidential informants like John McIntyre, id. ¶ 372.

The complaint, and materials submitted by the parties in their briefing on this motion¹, include the following facts that are relevant to the questions raised by the present motion. First, the government has provided the court with a copy of the book Valhalla's Wake: The IRA, MI6, and the Assassination of a Young American (1989) ("Valhalla's Wake"), written by John Loftus ("Loftus"), then the attorney for the McIntyre family (including the plaintiffs), and Emily McIntyre. The book includes the following statements and assertions, among many others.

Before John McIntyre's disappearance, "[c]ustoms needed John [McIntyre] to take the stand against Joe Murray,² [Philip] Brady [of the United States Customs Service] explained. If John agreed, Brady promised that he would be admitted into the Witness Protection Program and put forever beyond the reach of the Mob's retribution." Id. at 172. Later, "John couldn't believe that he was being doublecrossed by grunts from Brady's office. It was obvious that customs [sic], in its typically graceless fashion, was now trying to blackmail him. If he didn't cooperate in its investigation of Joe Murray, customs [sic] would expose him as an informer to his buddies in the IRA and the Mob." Id. at 175.

Days after McIntyre's disappearance, his girlfriend "discovered [McInytre's] pickup in the parking lot of Murray's home-heating oil business in Charlestown. [She] knew of John's growing dread of retribution by Murray. She began to fear that Joe had kidnapped John and killed him." Id. at 184-85. "A few days later, the McIntyres were presented with another piece of chilling news. John's blue pickup, the same one Robbi [McIntyre's girlfriend] had spotted at Murray's, was found parked under the Neponset Bridge in Quincy." Id. at 187. "When [McIntyre's father] opened [an envelope the tow-truck operator had found on the pickup's dashboard], his ailing heart skipped a beat. Inside was John's VA check. If John hadn't cashed this check, thought McIntyre, he must be in real trouble. For the first time, he had some hard evidence to justify his brooding fears for his son's life." Id.

Some time later, Loftus reportedly had the following conversation with Assistant United States Attorney Gary Crossen ("AUSA Crossen"):

"Was John really killed because he was a government source?" asked Loftus.

"Yeah," replied Crossen. "We offered him the Witness Protection Program because we were concerned for his safety, but he refused. Now everyone I've talked to is pretty certain that he's dead."

Id. at 210.

In the end, the book proposes, supposedly based upon information from a "source" within British intelligence, id. at 194-96, and "an IRA courier," id. at 213-15, that McIntyre was killed by British agents "to provide cover for their IRA mole and to confuse IRA efforts to find and punish the real double agent in their midst," id. at 196.

According to Valhalla's Wake, in July 1985, Loftus wrote a letter (the "1985 Loftus letter") to then Attorney General Edwin Meese, in which Loftus referred to John McIntyre as "the deceased," and stated that "[i]t is murder, not merely negligent homicide, when the government knowingly exposes an informant." Id. at 210-11. In this letter, Loftus threatened to file a civil action against the United States for John McIntyre's wrongful death. Id. at 211. Next, in 1986, Loftus sent a letter (the "1986 Loftus letter") to the Department of Justice, Customs Service, Drug Enforcement Administration ("DEA"), the United States Attorney for the District of Massachusetts, and the Secretary of State, on behalf of the plaintiffs in this case and another member of the McIntyre family, claiming damages under the FTCA for the wrongful death of John McIntyre and demanding, under the Freedom of Information Act, "copies of each file, document or dossier in which John L. McIntyre is named as a subject or crossreference." United States' Reply Brief, Ex. B (Letter from Loftus and authorizations from the McIntyres for Loftus to act as their attorney "concerning the wrongful death of John L. McIntyre").³

Also in 1986, Emily McIntyre requested that the Veterans' Administration place a headstone marker for John McIntyre at the Massachusetts National Cemetery. United States' Combined Motion and Brief For Leave To File a Supplement to its Reply to Plaintiffs' Opposition to the United States' Motion To Dismiss (hereinafter "United States' Supplement to Reply"), Ex. 2 (Declaration of Kurt Rotar); see also Valhalla's Wake at 211. In 1991-92, Emily McIntyre applied to the Veterans' Administration for death benefits from John McIntyre's policy. United States' Supplement to Reply, Ex. 1.

In the years after McIntyre's disappearance, Boston-area newspapers published many articles that suggested both the general theory that McIntyre was killed because he was believed to be an informant and the more specific theory that the plaintiffs now present in their complaint. Emily McIntyre is either quoted or mentioned in several of these articles. I highlight below the contents of those articles that appear most pertinent to this motion.

A December 24, 1992 Boston Globe article, which quoted Emily McIntyre, reported that AUSA...