Donahue v. United States, 660 F.3d 523

Background

Donahue and Halloran estates sued the United States under the FTCA for injuries tied to FBI conduct related to the Bulger/Flemmi murders.
The panel majority held that the FTCA accrual occurred by September 2, 1998, and thus the claims were time-barred under 28 U.S.C. § 2401(b).
Plaintiffs argued that accrual should be delayed due to government concealment and ongoing stonewalling, and that a broader accrual rule should toll the limitations period.
There was extensive publicity in 1998–1999 about FBI informants and corruption, including Morris’s testimony and Judge Wolf’s Salemme-related rulings, influencing reasonable notice.
The court recognized that sovereign immunity is a distinct defense but acknowledged the FTCA waives immunity for timely claims; the central dispute was accrual, not liability per se.
The opinion discusses the appropriateness of en banc review to address exceptional importance and the broader implications for accountability of federal agencies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
When did FTCA accrual occur for the claims?	Accrual occurred later, in late 1998–1999, given government concealment and evolving evidence.	Accrual occurred by September 2, 1998, based on publicity and reasonable notice of the FBI’s role; claims were time-barred.	Panel majority held accrual by September 2, 1998; claims time-barred.
Is sovereign immunity compatible with FTCA limitations in this context?	Sovereign immunity should be viewed flexibly to permit recovery for serious government misconduct.	Sovereign immunity applies; FTCA's statute of limitations should bar late claims if accrual occurred timely.	Majority ruled against tolling or broadening accrual; sovereignty limitations upheld within panel framework.
Should en banc review have been granted for exceptional importance?	This case presents exceptional importance requiring full-court review to correct injustice.	En banc review is not warranted; the panel's application of accrual precedent is correct and uniform.	En banc review denied.
Do the dissenters' arguments demonstrate a proper remedy to address injustice?	En banc review would toll or revise accrual to provide relief to the families.	No basis to depart from established accrual rules or to grant relief outside the FTCA framework.	No change in outcome; majority decision stands without en banc consideration.
Should the court toll the limitations period based on concealment in this FTCA case?	Concealment by the government warrants tolling and equitable delay.	Tolling should be narrow and not extend to the timing here; accrual rules control.	The court did not toll in the panel decision; accrual as of 1998 was controlling.

Key Cases Cited

United States v. Kubrick, 444 U.S. 111 (1979) (strict construction of FTCA limitations; accrual timing matters)
McIntyre v. United States, 367 F.3d 38 (1st Cir. 2004) (duty to inquire; accrual begins at rational endpoint of inquiry)
Callahan v. United States, 426 F.3d 444 (1st Cir. 2005) (publication and Wolf opinion cited as accrual considerations)
Rakes v. United States, 442 F.3d 7 (1st Cir. 2006) (duty to inquire tied to publicity; accrual timing varies by facts)
Merck & Co., Inc. v. Reynolds, 130 S. Ct. 1784 (2010) (limits-on discovery-based accrual interpretations)
United States v. Aetna Cas. & Surety Co., 338 U.S. 366 (1949) (FTCA purpose and congressional intent to provide remedy)
Feres v. United States, 340 U.S. 135 (1950) (FTCA as a remedy‑granting statute to mitigate sovereign immunity)
Owen v. City of Independence, 445 U.S. 622 (1980) (sovereign immunity context and constitutional considerations)
Igartúa v. United States, 654 F.3d 99 (1st Cir. 2011) (exceptional importance; discussion cited in dissenting views)