1st Cir. Finds that Once Plaintiff Had Sufficient Knowledge to Trigger Accrual for One Theory of FTCA Liability, Accrual Was Triggered on All Theories

Per Rakes v. U.S., 442 F.3d 7 (1st Cir. Mar. 23, 2006):

. . . [A]n action under the Federal Tort Claims Act (FTCA) “accrues when the injured party knew or, in the exercise of reasonable diligence, should have known the factual basis for the cause of action.” Attallah v. United States, 955 F.2d 776, 780 (1st Cir.1992) (citing Kubrick, 444 U.S. at 121-25, 100 S.Ct. 352; Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 130 (1st Cir.1987)). . . .

. . .

In this case, Rakes and Dammers ask us to conduct this accrual analysis three times, each with respect to a different proposed explanation of the way in which the government caused their injury.

. . .

In this case we need not make a precise choice as to whether the three theories (only two of which are advanced by Rakes on appeal) should be analyzed separately from one another. On the present facts, once the plaintiffs had sufficient knowledge (actual or constructive) to trigger accrual of the emboldening theory, they also had sufficient knowledge to trigger accrual of the wrongful disclosure and negligent supervision theories.

. . .

We note that Dammers . . . argues two distinct tolling doctrines. . . . Specifically, she argues that she was delayed in filing her claim because 1) she was under duress as a result of being threatened by members of the Winter Hill Gang, and 2) the government fraudulently concealed or misrepresented information vital to her claim. . . . [W]e conclude that fraudulent concealment and duress are both available for tolling FTCA claims.

. . .

. . . Once the misconduct ceased, and the United States began actively seeking to frustrate rather than further the Winter Hill Gang's criminal activities, the government was, under the facts in this case, no longer responsible for ongoing threats made by members of the Winter Hill Gang. We therefore agree with the district court that Dammers' duress argument fails.

. . .

Dammers also contends that her claim is tolled because the government fraudulently denied any wrongdoing and otherwise deliberately failed to disclose certain facts known to it that would have enabled her to bring her claim. . . . The district court found that the claim was not tolled under this rule because plaintiffs had not acted with diligence in investigating their claims. . . .

. . .

Where . . . a plaintiff could have turned up needed information through investigation, but has failed to exercise the requisite diligence, she will not be able to avail herself of either doctrine, and will lose her claim. Such was the case here, and as a result, the statute of limitations was not tolled.