Donahue v. United States

person practice4 arrest of a on it is now considered a required best to must supervised comply release with seek a revocation warrant on sworn Warrant Fourth Amendment facts, Clause an oath or request affirmation is not jurisdiction the court’s order to extend constitutionally mandated. Because the 3583(i).” Sherman v. Parole under valid, warrant was the district court had (9th Comm’n, 502 F.3d Cir. to jurisdiction revoke the appellant. 2007) (citing Vargas-Amaya, 389 F.3d judgment The of the district court is 5). rejected 907 & n. Fifth Circuit The hereby AFFIRMED. argument requirement that a facts sworn must be read the term into “warrant” 3583(i) way

avoid section in a interpreting would render unconstitutional.

Garcia-Avalino, 444 F.3d at 446-47. We conclude that the Fourth DONAHUE, individually Patricia and in require Amendment warrant Capacity her as Administratrix of the based on or affirmation revoke an oath Donahue; Estate Michael J. Mi- supervised an “An individual on release. Donahue; Donahue; chael T. Shawn oath or ‘is designed affirmation to ensure Donahue, Plaintiffs, Ap- Thomas be by insuring that the truth will told pellees, will impressed witness or affiant solemnity importance of his v. Brooks, words.’” United States v. America, UNITED STATES of (8th Cir.2002) F.3d (quoting Defendant, Appellant. Turner, United States v. 558 F.2d (2d Cir.1977)). officers, Probation who noti Halloran, Estate Edward Brian violations, fy alleged district courts of Macarelli, Capacity Patricia in her supervised by the courts. See United Estate, as Administratrix of the Plain- York, States v. 22 n. 6 tiff, Appellee/Cross-Appellant, Cir.2004). probation Because officers v. “function as an ‘arm the court’” America, Defendant, United States possess a unique require role does not Appellant/Cross-Appellee. imposed ordinary the same safeguards affiants the Fourth Id. Amendment. 09-1950, 10-1766, 09-1951, Nos. 09-1952. Saxena, (quoting United States Appeals, United States Court of (1st Cir.2000)). 1, 5 n. 1 Because a proba First Circuit. credibility typically tion officer’s known court, by the district and because she is an 7,May Heard 2010. court, officer oath or affirmation Decided Oct. 2011. required credibility is not either to ensure or to officer impress the with the conse

quences of tell the failing to truth. While Indeed, currently by proba- parole sign, the form used accompanied officer petitioning language penalty perjury tion officers in for a warrant "I declare under releasee, foregoing supervised although arrest a that the is true and correct.” Form case, Appellant suggests proba- used in is called a "Petition PROB-12C. using Warrant or for Offender Under Su- in Puerto now Summons tion officers Rico are pervision." language. space has a form recommended

524 L.Ed.2d 259 Whether the fed-

62 jurisdiction even over the eral courts timely filing depends upon claim of 28 notice of claim. U.S.C. administrative 2401(b), Kubrick, 2675(a); §§ U.S. law requires 100 S.Ct. 352. Our case objectively view of an point used, point not the person reasonable Nicholas Wall Hinchey, T. Edward particular plaintiffs. Cascone view LLP, Walsh, Schieffelin, Bos- Sloane and States, F.3d v. United Plaintiffs, ton, MA, Appellees. Cir.2004); McIntyre Niceville, FL, Morris, pro se. John M. (1st Cir.2004). Thomas Mark Levy, Heuer Jonathan many well-publicized There were admis- Justice, Washington, Dept, of Bondy, U.S. Agent those of FBI particularly sions— Christie, DC, E. Shaheen & Gor- William Morris whose dramatic courtroom disclo- Concord, NH, Defendant, don, Appel- specifically the FBI’s sures about role lant/Cross-Appellee. 11, 1982, May murder of Hallo- double by ran and Donahue were corroborated LYNCH, Judge, Chief Before put other objec- several witnesses—which TORRUELLA, BOUDIN, SELYA, on tively persons reasonable notice THOMPSON, LIPEZ, HOWARD and this, Despite plaintiffs these claims. did Judges. Circuit required not act within the time limits to required It is an easy step file the claims. ORDER OF COURT claim. to file a A LYNCH, Judge, Chief BOUDIN court, very which took these claims HOWARD, on Judges, Circuit statement seriously, plaintiffs concluded that did en denial banc. claim, light file a timely not Constitution, arguments presented made and evidence federal courts Under cannot by plaintiffs. The courts assume sympa- may not make decisions based arguments create the role of advocates and thy parties may displace any never made. Nor was there error in judgments Congress made non-con- legal making standards used pre- matters. issue legal stitutional decision. these cases not whether sented shameful; of the FBI conduct was. jurisdiction That the have no courts plaintiffs not whether are victims of damages hear a law suit for under the conduct; they are. delay because of does not FTCA gov- mean that two other branches of wronged plaintiffs, However the is precluded are providing ernment have com plaintiffs sue is whether That remedy. is a decision for the Con- plied stringent period limitation with the Executive, and for gress Congress for the Fed set claims under courts, jurisdiction 2401(b). federal which have no eral Tort Act. 28 Claims U.S.C. relief. to award money Because the victims pay comes from the United those time limits TORRUELLA, Judge, required as a matter of law are to be en banc concerning denial of review. v. Ku strictly construed. United States brick, 111, 117-18, “exceptional impor- cases 100 S.Ct. Some potential tance”1 because of will learn from these examples dreadful to affect the lives of millions of people. government amuck, gone future reform is See, e.g., et al. v. Igartúa, of little consolation injured to those (1st Cir.2011) (Torru- 99, official malfeasance. ella, J., dissenting). Other cases are of This concern would be important even if exceptional importance light because of the our required cases the panel’s result. But they cast public on our institutions. they government’s do not. The claim that latter, always affecting while directly Donahue Halloran estates filed as broad a segment population, their too claims rests on astonish- exceptionally important nevertheless ingly one-sided understanding what rea- virtue of what demonstrate they about requires. panel majority sonableness place trust that better or we—for worse— pins 2, accrual date as in those This is one those institutions. 1998, upon publicity arising barely cases. Yet a month since a divided FBI Agent Morris’s revelations about the Igartúa vote in denied million United leak of Halloran’s identity Bulger. residing in States citizens Puerto Rico re- in cannot see what way it is “reasonable” view of exceptional constitutional issues of to expect surviving family members to importance, this court continues nox- this prima credit outrageous speculation facie pattern again ious prevents and once con- that papers high-level systemic questions sideration the full court of corruption FBI may have contributed to exceptional importance. By this action it their injury, particularly when—as here— government’s allows the con- outrageous government had repeatedly assured duct to remain of any consequence, free years them over the that someone else was in Igartúa, as perpetrates monstrous responsible. Is it so unreasonable for citi- another, injustice smaller, albeit no zens to on what rely government their worthy, hapless less group citizens. repeatedly asserting as the truth? Can This appropriate is not the occasion be allowed to benefit from revisiting my detail any disagreement perfidious its own duping conduct in its with the panel’s majority opinion. I indi- own with stonewalling citizens and out- cate grounds my here belief right Are lies? citizens to held to such be that presented error this cynicism standard in their dealings sufficiently important to merit en re- with government, especially such hal- view. agencies lowed the FBI? Beyond implications for the Donahue Moreover, as parties repre- families, and Halloran this case has thrust sented, if even the publicity surrounding renewed on the attention FBI’s reliance on triggered duty Morris’s revelations to in- informants, confidential criminal quire, alone is not sufficient accru- obvious ways in which this can relationship McIntyre al. See become cozy too for comfort. trust Public 38, Cir.2004) (stating in our institutions when hunch, although hint, “mere suspicion, or stray, these institutions be held ac- claim” may “give duty rumor of a rise to a countable and made absorb the costs They inquire possible their into the ought per- conduct. existence ” claim,” ceived as with de a claim “does not accrue on operating impunity. facto basis) (first Although emphasis hoped agencies second original, 35(a)(2). See Fed. R.App. P. added). law Nation common in existence when our triggers What accrual emphasis dis England. information at one’s having enough separated from See Owen words, Mo., 622, ac other to file a claim—in posal City Independence, endpoint of at the rational crual occurs 645 n. 100 S.Ct. L.Ed.2d 673 outset. Merck & inquiry, not at its However, assumption Cf. — U.S. -, Co., Reynolds, Inc. v. scrutiny. Ed- not withstand historical (2010) 176 L.Ed.2d 582 Borchard, M. Responsi- win Governmental period that limitations (rejecting argument VI), 17- bility (pt. Tort Yale L.J. 1658(b)(1), which runs under U.S.C. (1926). Furthermore, the present violation, begins of “discovery” from quintessential example the the fact is of in begun have plaintiff run would “when a can, government that at the and times original). is vestigating”) (emphasis does, do wrong. otherwise, could as I hard to see how it be importantly, More the doctrine of sover- to think there is can see no reason eign immunity cannot be in the sustained usefully question answer to the of general of our Al- face constitutional structure. the time between what of should be period far though language specific is from yield and it will inquiry begins when when many parts, the nevertheless Constitution filing support evidence to an sufficient nothing, specific implied, contains or that government FTCA claim. Given adopting principal upon the absolutist stonewalling 2005— actively as late as was immunity sovereign which rests. Further- years some after Morris’s testimo seven more, the of the preceding record debates ny parties inquiry if the were on —even adoption are bare of Constitution notice, not they would have discovered any might or language asseveration until, at anything useful and reliable support serve as basis for of this monar- earliest, Judge publication Wolfs generally chist anachronism. See Erwin decision in Salemme in Chemerinsky, Immuni- Against Sovereign 1999.2 (2001); ty, 53 Stan. L.Rev. 1201 Susan individually, Taken these concerns—in- Randall, Sovereign Immunity and the trust, loss of injustice, public dividual and (2002). Neb. History, Uses L.Rev. 1 legal might substantial error — fact, country In establishment this en banc review. Taken justify themselves republican government, of a form of together, I believe do. any which sovereignty repose As in Igartúa, underpinning this institution, single or made it individual in- judicially outcome is an anachronistic any government clear that neither the nor theory validity vented no or legal has part being thereof could be considered as case, sover- place American law—in this position in the same the En- infallible as thirty- eign immunity. Two hundred and been, glish king had and thus immune years five after we rid of King ourselves harm responsibility that it caused ascendancy George despotic III and his its citizens. America, to a doc- cling over colonial we sovereign immunity Not incon- trine on the Me- originally that was central tenet American sistent King dieval notion that “the can do no one, including the wrong.” blindly accepted government maxim was that no This law, assumption law it also runs government, into American under the is above contrary to incorporated part specific, provi- fundamental was Salemme, (D.Mass.1999). F.Supp.2d 2. See United States v. Assessment, the Supremacy Comparative 35 Geo. Constitution: Wash.

sions L.Rev. and the Due Process Clause of Int’l. Clause3 assuming Fifth Even Amendment.4 The Donahue Halloran cases are and of sovereign the doctrine arguendo example but that even in unfortunate vivid

immunity part English was common legal the United with all our and legal system our law, its transference to safeguards, constitutional (cid:127) have prevented, would go rogue. my can belief Although trumped, by the and its Su- Constitution hope system normally that our self- Clause, especially by premacy corrective, there are times when the courts Clause, Process which Due duty keep sys- to intervene to our deprivation tortuous the lives of decency. within the tem bounds This is government’s felonious citizens time, court sadly, such has failed duly compensated. agents partners be duty. concept in its of sovereign im- Many jurisdictions munity may recognized beyond power of this However, incompatibility immunity challenge. with court to this sovereign court In the principles. grounds United had other valid to correct democratic the injustice of many high reject panel opinion. state courts have the We have in sovereign immunity fundamentally past the tolled the Federal Tort ed Claims See, v. e.g., Muskopf Corning Act’s statute when unjust. gov- of limitations the Dist., 211, 11 89, Cal.Rptr. 55 ernment concealed Hosp. deliberately Cal.2d evidence of 457, (1961); wrongdoing, P.2d 458 Molitor v. Kane its and there was no 359 reason Dist., 11, Community land Unit 18 Ill.2d us not to do so See for here. Attallah v. 89, (1959); 776, 94 Barker v. City 163 N.E.2d United 779-80 Fe, Cir.1992) 480, 85, (finding Santa 47 N.M. 136 P.2d 482 statute of limita- FTCA (1943). legisla As a result of tolled judicial government deliberately tions when action, “only tive a handful States still concealed evidence of murder Customs Moreover, employees). to the old rule of even if cling common-law immu we must Owen, governmental respect the nity sovereign immunity, functions.” notion of 28, respect require U.S. at 100 the 645 n. S.Ct. 1398. did not harsh and Globally, unjust among major there is a trend result in this case. The FTCA sovereign democratic nations towards abolition of waives United States’ immu- Gillman, nity for sovereign immunity. presented years See Denise a claim within two “accrues,” Calling Blujf: the United States’ How the claim after U.S.C. 2675(a), Sovereign Immunity and it within this court’s Undermines States’ accrual power interpret requirement United Claim to Do Effective System, broadly enough Human Rights mestic Geo. to allow claims in this 591, proceed. L.J. 636-46 Even case to v. See United States Co., 366, from which believed & Kingdom, (wrong Surety Aetna Cas. (1949) (“We Borchard, ly, the American supra) see 94 L.Ed. derived, sovereign immunity notion of ab think that attitude in congressional ... rogated government’s immunity passing accurately from re- [FTCA] is through in tort the Crown Proceed flected ...: ‘The ex- [the] suits statement Pfander, emption Act of 1947. E. of the ings sovereign See James suit involves Accountability Europe: hardship enough, A consent been Government where has Const, Const, VI, 2,§ 2. 3. U.S. art. cl. amend. V. 35(a)(2).5 again I therefore am once rigor to its P. to add We

withheld. con- three members where disheartened of construction by refinement ”) re- (quoting voted en banc prevent been announced.’ court have has sent Co., 243 N.Y. Hayes Igartúa Anderson Constr. view. (1926) (Cardozo, (1st Cir.2011) J., (Lipez, 153 N.E. 29-30

J.)). should have I believe this court en dissenting from denial of re- petitioners, en bane review granted banc). rein- panel, and the decision of the versed that en review is reserved It is true the district court judgment stated true It is also exceptional for the case. against damages petitioners granting “unjust” will be a every that not decision part felonious exceptional under importance matter of their murder of loved ones. 35(a). But of en banc Rule the denial “Whitey” finally has Bulger James if question: here raises the review obvious being haled into apprehended, is now full court’s case does not warrant the this to answer federal courthouse Boston attention, what Two families case does? committed allegedly the crimes he tragically harmed an institution were himself, But years ago. Bulger unlike government. betrayal the federal panel majority’s to the decision and thanks egre- more public trust could not be it, Bul- court’s to reverse the full refusal judges Two district and a member gious. Boston most trusted associate—the ger’s case have hearing first gotten away with murder. FBI office—has betray- in law found a basis to redress outcome, im- wrong and most This is the al. Three members of our court require our law it. portantly, does not Cf. panel’s to reconsider the unfortunate voted

Attallah, at 779-80. moral circumstances, Given decision. these of this outcome seems to be that crime frustrating in the extreme to witness pay, government. at least for the play again. to en banc out aversion review redress, by case cries for either This Court, special bill of Supreme or en banc against This institutional bias Congress. goes beyond language review rehearing is emphasizing rule that en banc LIPEZ, dissenting from Judge, grounded, It is generally disfavored. denial of en banc. rehearing dynamics appel- in the human of an part, process deeply than ex- court. The en nothing

There is more hollow banc requires colleagues over It to review pressions sympathy by judges divisive. to re- and sometimes injustice permits colleagues law them the work There was that work There is also compelled judge negatively. dress. no outcome Instead, too drawing mis- that line will become here. there was a serious a fear injus- granted If en review is judgment perpetuates grave difficult. banc here, deny it worry goes, en us how can we permits tice. The banc process have no remedy injustice by feelings such an acknowl- there? These and fears of “ex- in the en calculus. We can edging place this is a case banc obvious: the en importance” beyond feelings delib- move the hard ceptional distinctions R.App. process. the full Fed. banc We can draw eration court. See Although uniformity or "the en is "not fa- of the court’s decisions” vored,” exceptional exceptions proceeding question "en banc involves a exist where con- 35(a). importance.” necessary or maintain Fed.R.Civ.P. sideration to secure principled ways. job requires Our us to do against Congress United made things. plain objective its fairly treat individuals harmed conduct of ac This case is moored deeply its facts tors. See Feres v. United and, ultimately, requires judgment about 135, 139, (1950) 71 S.Ct. 95 L.Ed. 152 when the families should have been on (describing the FTCA as “the culmination notice of the FBI’s “reprehensible” role in long effort to mitigate unjust conse their decedents’ murders. Donahue v. quences of sovereign immunity suit”); Cir. id. at (“The 71 S.Ct. 153 primary 2011) (using that term to describe the purpose of the Act was to extend a remedy conduct). review, FBI’s In urging en banc it....”). to those who had been without I acknowledge panel majority’s Although we are not “free to construe [the conclusion reflects careful thought and a FTCA statute of so as to limitations] de good-faith attempt to deal with difficult feat purpose, obvious which is to en is, however, facts. palpably wrong. courage prompt presentation correctly observes claims,” Kubrick, 117, 100 444 U.S. at “courts must apply legal rules even-hand 352, we also should not make the reason edly,” id. at they purport apply judgment ableness particular a “rule” that requires rejection of appel without regard for the objective FTCA’s lants’ claims as time-barred. But the issue Feres, “to mitigate unjust consequences,” here bright-line rule; does not turn on a 71 S.Ct. 153. rather, the question is one of reasonable (“[Tjhese id. ness. Here, at 623 appeals even without taking into account involve the objective reasonableness the egregiousness of government’s con- duct, failure to discern at an the facts favor the Hallorans and the earlier injury time both their likely and its Donahues. Our precedent earlier had cause.”). Determining whether conduct path carved out a that should have led the was reasonable us to make a panel majority to conclude that the Hallo- call, judgment call. In making that we fail rans’ and Donahues’ suits against the Unit- in our responsibility if we do not test ed States were timely. explain, As shall correctness applying what our the circumstances here readily distin- First colleague, Judge guishable Frank M. other, from those of related Coffin, nerve.” justice called “the in cases which we have found the Coffin, Ways The a Judge:

Frank M. Moreover, actions to be late. when meas- the Federal Appellate against ured only just outcome in this Reflections from (1980). Bench 222 case, majority’s rejection of the Hallo- ran and Donahue claims as time-barred is sure, To may we disregard not appli only wrong, inexcusably so. legal cable doctrine simply to accomplish justice. No matter equities, what panel we majority concludes that may upon not “take it ourselves to plaintiffs extend reasonably should have known the waiver sovereign immunity] [of beyond the factual basis for their by Sep- claims intended,” that which Congress United tember 2, 1998, solely on “informa- Kubrick, States v. 111, 118, 100 tion generally that was available at 62 L.Ed.2d 259 Salemme “Nei time of the Dona- hearings.” ther, however, hue, ... should we narrow the 634 F.3d at 625. The critical informa- Id. In Congress waiver intended.” tion was “the publicity” avalanche of sur- opening the federal courts to tort claims rounding John Morris’s testimony April in (for id., May trial in late June 1998 by subsequent own supplemented ongoing hearings, perjury, grand jury most because he lied to the about the

publicity 2 sur- on notably publicity Bulger about whether forced him to sell store). rounding Flemmi’s admission Stephen Rakes’s—liquor If “late 1998” his— tip of Brian Halloran’s he had been told the appropriate was accrual date Roger Wheeler’s murder. FBI about Rakes family, it would be appropriate to concern- Undoubtedly, press reports these conclude that the accrual for the date Don- significant and Flemmi were a ing Morris was ahues months later (arguably as late the relation- development unwrapping Judge Wolfs decision in September Bulger/Flemmi. FBI and between the ship 1999). addition, In much publicity cases, however, were In none of our other acqui- cited in referred to FBI’s Rakes early-stage reports the basis activity escence to criminal other than relationship attributing knowledge alerted murder —which would have factors, Among plaintiffs. other we plaintiffs outrageous the much more link Judge L. emphasized Mark Wolfs killings between FBI and the their year after September 1999—a decision family Id. at members. 22-23. imposed the cutoff date In v. Callahan F.3d important piece this case—as an (1st Cir.2005), where the cutoff date puzzle. May was we April noted the examples approaches As of other to the publicity surrounding testimony Morris’s date, Roger in the accrual Wheeler case but also emphasized newspaper articles (the plaintiff McIntyre other were published 1999 and Judge Cir.2004)), where opinion. “Agent Wolfs wrote: May the cut-off date for accrual was testimony Judge opin- Morris’s Wolfs family spoken publicly member had one easily provide ion the requisite knowledge knowledge suggesting 60 Minutes actual that the FBI and Flemmi protected Bulger Bul- a connection between FBI and prosecution them emboldened date, ger/Flemmi before the cut-off crimes, including commit the murder of family other members were aware of that Moreover, at 454. we Callahan.” Id. said broadcast, other among reports. news Id. “Judge [suggesting statement Wolfs at 49. In Rakes United Bulger may played and Flemmi (1st Cir.2006), where the also cutoff Wheeler, Halloran, in a role the and Calla- May panel in the to referred the han would prompt a reasonable murders] “speculation” before 1998 about person to further the matter.” investigate Connolly’s protection Bulger John added). (emphasis By Id. no means did Flemmi, a triggered duty inquire. which to suggest publicity we that the surrounding at 23. then that Id. We concluded the testimony year Morris’s more than a earli- 1998” “by claim accrued after Rakes’s enough er was own to start the publication own trial and the of articles Likewise, running of clock. in the Patter- surrounding Flemmi’s. Id. add- (emphasis ed). son 451 F.3d Adopting that same timeline based Cir.2006), reject- the were claims on the same the Hal- publicity would save importantly” ed “most because one of the Donahue, lorans’ claim. As for Michael later, plaintiffs had been interviewed about the whose claim was filed bit is possible in at significant by- that he was an innocent FBI’s role the murder issue the in before cutoff date —not because stander while Rakes immersed at Bulger/Flemmi history as a result his news accounts. Id. that, process designed is in all of these The en noteworthy just is

cases, cutoff later situation, the accrual date was application where the flawed present (Sep- in than dates by of precedent panel majority should be 1999). As 1998 and March tember I deeply corrected. regret we have time passed particularly more with failed to do so. I therefore dissent from — Judge opinion Sep- Wolfs in publication of rehearing the denial en banc. 1999—Morris’s sensational testi- tember

mony complicity about the FBI’s became THOMPSON, Judge, dissenting plausible. Judge As more Torruella from the denial of en bane. out in his dissent from the points For the reasons so well articulated was no rea- opinion, good there my dissenting I colleagues, agree early stages publicity son precedent them our does not compel particular pay to attention plaintiffs by majority the conclusion reached facially outrageous allegations concern- question, this case—whose core sim- relationship with ing Bulger the FBI’s ply at what put, point should a reason- Donahue, Flemmi. See 684 F.3d at 633 person government able believe that the (Torruella, J., dissenting). Halloran had lying to presents an issue of ex- them6 — assailant, his Flynn identified as and the ceptional importance to be considered government thought allegation suffi- 35(a)(2). the full R.App. court. See Fed. P. ciently Flynn try reliable to for the crime. I Accordingly, readily join my colleagues 1998,it By September may have been rea- dissenting from denial of rehearing en that the here plaintiffs sonable to conclude “ write separately profess banc. ‘hunch, hint, have sus- should had a [or] ” following: assuming precedent our claim, McIntyre, of a at picion’ (citation indeed mandate the omitted), outrageous conclusion imposing most grave duty inquiry. majority, injus- reached inquiry But cannot presumed seething had tice surely instantaneous such a result and, indeed, was provides results than enough more reason for us unwilling still concede that Con- precedent to reexamine the that currently nolly had disclosed Halloran’s conduct to us. I dissent. restrains Donahue, Bulger and Flemmi. (Torruella, J.,

F.3d at 637 At dissenting). minimum, the claims here should Rakes, accrue, found to and, “late light

before 1998”

unique involving Flynn, Jimmy scenario status, bystander Donahue’s plain- HARRON, Plaintiff, Stephen Appellant, generous

tiffs were entitled to more view timing. Big Time, Inc., Plaintiff, safely say can no one on our court happy with the result reached FRANKLIN; Stephen TOWN OF T. majority in us this case. All of Williams, Police; Jeffrey Chief of D. recognize injustice that has done Administrator; Halloran Notting, Town Donahue and families. Cer- But we could have remedied this injustice. tain rather, question sympathy,

6. This is not a American civics.

Case Details

Case Name: Donahue v. United States

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 6, 2011

Citation: 660 F.3d 523

Docket Number: 09-1950, 10-1766, 09-1951, 09-1952

Court Abbreviation: 1st Cir.