Full opinion text
MEMORANDUM AND ORDER YOUNG, Chief Judge. This case consolidates two separate suits, essentially alleging the same misconduct. Julie Rakes Dammers (“Dam-mers”), her former husband Stephen Rakes (“Rakes”), and other members of the Rakes family brought suits against the United States of America (the “United States”), the Federal Bureau of Investigation (the “Bureau”), Federal Bureau of Investigation agents John J. Connolly, Jr. (“Connolly”) and John M. Morris (“Morris”), and others. Dammers and the Rakes family claim that Bureau agents cultivated special relationships with members of the criminal organization known as the “Winter Hill Gang” (the “Gang”) for use as informants. While nurturing their relationships with informants James J. “Whitey” Bulger (“Bulger”) and Stephen J. “The Rifleman” Flemmi (“Flemmi”), in particular, the plaintiffs argue that the United States and its agents protected Bulger and Flemmi from investigation, arrest, and prosecution, and leaked confidential law enforcement information to Bul-ger. The plaintiffs contend that these acts, allegedly carried out in contravention of Bureau rules and regulations regarding the proper handling of informants, emboldened Bulger and Flemmi to commit criminal acts and led to the Gang’s 1984 extortion of Rakes and Dammers’s liquor store and the threats made against the Rakes family. Dammers and the Rakes family have put forth, inter alia, various claims under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, including theft and conversion, intentional torts, negligence, intentional and negligent infliction of emotional distress, loss of parental and spousal consortium, and loss of prospective business relationships. The United States has moved for summary judgment on the plaintiffs’ FTCA claims [Doc. No. 195], and the plaintiffs have opposed the motion [Doc. No. 236] (“Pis.’ Opp’n”). The United States has also filed a renewed motion to dismiss the FTCA claims as time-barred under the FTCA’s two-year statute of limitations, 28 U.S.C. § 2401(b). [Doc. No. 179]. The United States contends that Rakes and Dammers’s FTCA claims accrued before the cut-off date of May 11, 1999. Rakes and Dammers separately oppose the renewed motion to dismiss, arguing that their claims accrued on September 15, 1999, the day Judge Wolf issued his opinion in United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999) [Doc. No. 234]; [Dammers Doc. No. 164]. On November 16, 2004, this Court heard oral arguments on both of the United States’ motions. After careful reflection, the Court now addresses each motion in turn. I. UNITED STATES’ MOTION FOR SUMMARY JUDGMENT ON RAKES AND DAMMERS’S FTCA CLAIMS The following facts do not appear to be in dispute for purposes of this motion for summary judgment. Bulger and Flemmi were members of the Winter Hill Gang, a criminal organization engaged in activities including murder and extortion. Pis.’ Opp’n at 2. From 1967 to 1990, Bulger and Flemmi also acted as FBI informants, providing valuable information on La Cosa Nostra. Id. at 3. They were handled by FBI Special Agent John Connolly and Supervisory Special Agent John Morris, the supervisor in charge of the Organized Crime Squad of the Boston Office of the FBI. Id. At the time Connolly officially opened Bulger as an informant in September 1975, Bulger had a criminal background. Def.’s Mem. [Doc. No. 196] at 3. Likewise, at the time Connolly officially reopened Flemmi as an informant in September 1980, Flemmi had a criminal background and was suspected of being involved in murder. Id. During their years as confidential informants for the FBI, Bulger and Flemmi were involved in numerous murders, as described in United States v. Salemme, 91 F.Supp.2d 141, and United States v. Flemmi 195 F.Supp.2d 243 (D.Mass.2001) (Wolf, J.). Def.’s Mem. at 3. Prior to May 1982, Connolly and Morris met socially with Bulger and Flemmi. Id. They also received gifts from Bulger and Flemmi between 1976 and 1994. Id. In 1976, for instance, Connolly improperly accepted a diamond ring from Bulger and Flemmi. Id. Bulger and Flemmi gave Morris a case of wine in late 1981 or early 1982, $1,000 in spring 1982 and again in late 1982 or early 1983, and $5,000 in 1986 or 1987. Id. Plaintiffs Rakes and Dammers opened a liquor store in South Boston in December 1983. Id. at 2. Within approximately two weeks of opening, Bulger, Flemmi, and defendant Kevin Weeks (“Weeks”) extorted the store from Rakes and Dammers in exchange for $67,000 and promises of more money. See id. Dammers contacted her uncle, Boston Police Detective Joseph Lundbohm (“Lundbohm”), for help, and he said that he would call a friend at the FBI for her. Id. Lundbohm contacted Connolly regarding the extortion, and Connolly responded that unless Rakes and Dam-mers were willing to wear a wire during their meetings with Bulger, the FBI was unlikely to intervene. Id. at 2-3. Connolly never documented his conversation with Lundbohm or investigated Rakes and Dammers’s allegations of extortion. Id. at 3. Instead, Connolly informed Bulger of his conversation with Lundbohm. Id. In late 1994 or early 1995, Connolly leaked to Bulger and Flemmi that they had been indicted for murder. Id. at 3^4. This tip allowed Bulger to flee and to evade arrest to this day. Id. at 4. Based on the foregoing facts, the United States argues that it should be granted summary judgment on the plaintiffs’ FTCA claims because (1) Connolly and Morris’s conduct was outside the scope of their employment, Def.’s Mem. at 4; (2) the discretionary function exception bars the plaintiffs’ claims, id. at 9; and (3) the plaintiffs’ claims would fail under Massachusetts tort law, id. at 16. Summary judgment is warranted if, after reviewing the facts in the light most favorable to the nonmoving party, no genuine issues of material fact remain. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(c). A “genuine” issue of fact is one that a reasonable jury, on the record before the court, could resolve in favor of either party. Anderson, 477 U.S. at 251, 254, 106 S.Ct. 2505. A fact is material when it “might affect the outcome of the suit under the governing law.” Id. at 248, 106 S.Ct. 2505; Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir.1993). In making its determination, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Id. The movant has the initial burden of production, which it can meet either by offering evidence to disprove an element of the plaintiffs case or by demonstrating an “absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met its burden, the non-moving party must “go beyond the pleadings, and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial.” Id. at 323-24, 106 S.Ct. 2548 (internal quotation marks omitted). Guided by this standard of review, the Court examines each of the United States’ arguments for summary judgment. A. Scope of Employment The FTCA grants jurisdiction for claims that are “caused by the negligent or wrongful act or omission of any employee of the government, while acting within the scope of his office or employment” under state law. 28 U.S.C. § 1346(b). Under Massachusetts law, conduct is within the scope of employment if (1) “it is of the kind [the agent] is employed to perform;” (2) “it occurs substantially within the authorized time and space limits;” and (3) “it is motivated, at least in part, by a purpose to serve the employer.” Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163 (1986). “The scope of an employee’s employment,” according to the Supreme Judicial Court, “is not construed restrictively.” Howard v. Town of Burlington, 399 Mass. 585, 590, 506 N.E.2d 102 (1987). The United States argues that the plaintiffs’ FTCA claims fail to satisfy the first prong of the Wang test because Connolly and Morris’s conduct was not of the kind they were employed to perform: , The disclosure of a confidential informant’s name to criminals, and protecting them from investigation and prosecution, are not activities of the kind that FBI agents are hired to perform. “The FBI Manual requires agents to exercise constant care to ensure that an informant’s identity is not disclosed, whether intentionally or inadvertently.” McIntyre v. United States, 367 F.3d 38, 54 (1st Cir.2004) (quoting United States v. Salemme, 91 F.Supp.2d 141, 150 (D.Mass.1999)).... Connolly’s release of any informant’s name, or other sensitive law enforcement information, to Bulger and Flemmi would have been wholly outside any authority delegated to him. This conduct does not further the institutional goals of the FBI; it is antithetical to them. Def.’s Mem. at 5. The United States contends that Connolly and Morris were “engaged in an independent and private purpose of [their] own and not pursuing the business of [their] employer.” Id. at 6. Rakes and Dammers argue that the United States’ “self-serving conclusion answers the wrong question” because “[t]he issue is not whether Connolly and Morris were authorized to commit their wrongful acts, but instead whether such acts were incidental to their authorized duties.” Pis.’ Opp’n at 5-6 (citing Howard, 399 Mass, at 590, 506 N.E.2d 102 (ruling that “anything which is reasonably regarded as incidental to the work specifically directed” satisfies the first prong of the scope of employment test)); see also Aversa v. United States, 99 F.3d 1200, 1212 (1st Cir.1996) (applying New Hampshire’s scope of employment test, which is virtually identical to that of Massachusetts, and holding that “[although an employee’s intentionally tortious act was not authorized, it may nonetheless have been within the scope of employment if it was ‘incidental to authorized duties” ’). Accordingly, Rakes and Dammers argue that “the actions [Connolly and Morris] took to protect Bulger and Flemmi so as to maintain their value as informants were incidental to their authorized duties of handling informants.” Pl.’s Opp’n at 6. “[T]he fact that the agents abused their authority by releasing sensitive law enforcement information to Bulger and Flemmi,” contend Rakes and Dammers, “does not relieve the government of liability.” Id. (citing Aversa, 99 F.3d at 1212 (holding that a AUSA’s conduct, while “tortious and contrary to his employer’s policies and rules,” was within the scope of his employment)). Essentially, the United States seems to argue that because Connolly and Morris’s conduct was contrary to certain FBI rules and regulations, they must have been acting outside the scope of their employment. This argument has a hollow ring. Were it accepted, any employer who prescribes that “all employees must act with due care in performing their duties” would be shielded from all liability for negligence. This is not the law. Connolly and Morris were hired, at least in part, to handle confidential informants. Soliciting valuable information from Bulger and Flemmi about La Cosa Nostra and guarding their identities as Top Echelon Informants are part of the job. In carrying out their responsibilities as handlers, Connolly and Morris allegedly violated various FBI rules and regulations. These violations by themselves, however, are not enough to support the conclusion that Connolly and Morris’s conduct in protecting their valued informants was not incidental to their overall duties as handlers. The United States next, argues that Connolly and Morris’s conduct was driven by an “independent and private purpose,” Def.’s Mem. at 6, and therefore does not satisfy the third prong of the Wang test which requires that the conduct “is motivated, at least in part, by a purpose to serve the employer.” Wang Labs., 398 Mass, at 859, 501 N.E.2d 1163. In support of its argument, the United States points to evidence that Connolly and Morris received gifts from Bulger and Flemmi and interacted with them socially. Def.’s Mem. at 3, 8. Under Massachusetts law, “if an employee acts from purely personal motives ... in no way connected with the employer’s interests,” he is not acting within the scope of his employment. Pinshaw v. Metropolitan Dist. Comm’n, 402 Mass. 687, 694-95, 524 N.E.2d 1351 (1988)(emphasis added). The United States asserts that “[t]he only individuals who would have benefitted from the egregious misconduct at issue were Bulger, Flemmi, Connolly, and John Morris — not the FBI.” Def.’s Mem. at 8. This blanket conclusion is unconvincing. There is some evidence that during their tenure as Top Echelon Informants, Bulger and Flemmi provided the FBI with valuable information regarding La Cosa Nostra in Boston. See Salemme, 91 F.Supp.2d at 203 (quoting Connolly as writing “Information from [Flemmi] is currently being utilized in the preparation of an affidavit in support of ... targeting [98 Prince Street], which is the highest priority organized crime investigation in [Washington, D.C.]. In addition to the Angiulo case, this informant is one of the two primary informants who will furnish the majority of probable cause ... targeting [the] (# 2 man in the Boston [La Cosa Nostra])”); id. (quoting Morris as writing “[Bulger] is one of the most highly placed and valuable informants in the Boston Division .... The closing of an informant of this caliber would deal a serious blow to the [Organized Crime Program] of the Boston Division” (emphasis omitted)). Given that Rakes and Dammers have presented some evidence that Connolly and Morris’s protection of Bulger and Flemmi aided the FBI’s pursuit of La Cosa Nostra, it would be improper for this Court to conclude at the summary judgment stage that Connolly and Morris were acting “from purely personal motives ... in no way connected with the employer’s interests.” Pinshaw, 402 Mass, at 694-95, 524 N.E.2d 1351. Finally, the United States argues that Rakes and Dammers’s claims fail under the third prong of Wang because Connolly and Morris’s conduct was so egregious that it could not possibly have been motivated by an intent to further their employer’s business. Def.’s Mem. at 7 (citing International Broth, of Police Officers, Local 433 v. Memorial Press, 31 Mass.App.Ct. 138, 141, 575 N.E.2d 376 (1991) (“[T]he fact that an act is done in an outrageous or abnormal manner has value in indicating that the servant is not actuated by an intent to perform the employer’s business.”)). While the degree of outra-geousness of an employee’s conduct may tend to prove or disprove the extent to which the conduct was motivated by a desire to serve his employer, one could reasonably infer from the evidence in this case that Connolly and Morris’s conduct, while deeply disturbing, was not so “outrageous or abnormal,” Def.’s Mem. -at 7, to fall utterly outside the scope of employment. The cases cited by the United States are factually distinguishable and do not undermine this result. See id. at 8-9 (citing Timpson v. Transamerica Ins. Co., 41 Mass.App.Ct. 344, 347-50, 669 N.E.2d 1092 (1996) (rejecting the argument that a football player was acting in the interest of his employer when he sexually harassed a reporter in the team locker room) and Doe v. Purity Supreme, Inc., 422 Mass. 563, 568, 664 N.E.2d 815 (1996) (rejecting the argument that a grocery store manager was acting in the scope of his employer when he raped and sexually assaulted a fellow employee)). Overall, taking all factual inferences in favor of Rakes and Dammers, the Court rejects the United States’ argument that Connolly and Morris’s conduct was outside the scope of employment. B. The Discretionary Function Exception The United States contends that Rakes and Dammers’s FTCA claims fail because they are based on conduct that falls within the discretionary function exception. Def.’s Mem. at 9. The FTCA bars “[a]ny claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). To determine whether claims fall within the discretionary function exception to the FTCA, courts must apply a two-step test: (1) “First, an inquiring court must identify the conduct that allegedly caused the harm” and (2) “Then, in determining whether Congress sought to shelter that sort of conduct from tort liability, the court must ask two interrelated questions: (1) Is the conduct itself discretionary? (2) If so, does the exercise of discretion involve (or is it susceptible to) policy-related judgments?” Muniz-Rivera v. United States, 326 F.3d 8,15 (1st Cir.2003). Before conducting its analysis, the United States frames Rakes and Dammers’s claims as being based on “(a) the FBI’s employment of informants with criminal histories; (b) the FBI’s failure to investigate their extortion; [and] (c) the FBI’s failure to protect Plaintiffs from being extorted.” Def.’s Mem. at 9 (alterations omitted). This is an unfair characterization of the basis of Rakes and Dammers’s FTCA claims. As explained in their opposition memorandum, Rakes and Dam-mers’s “claims are predicated on a series of actions by FBI agents Connolly, Morris and others that violated mandatory rules and regulations for their handling of Bul-ger and Flemmi — rules and regulations that were put in place to avoid the very harm inflicted upon the community of South Boston in general and Plaintiffs in particular.” Pis.’ Opp’n at 9. In other words, Connolly and Morris’s alleged violations of these rules and regulations allegedly caused the harm to Rakes and Dam-mers. This Court thus undertakes its analysis on Rakes and Dammers’s own construction of their FTCA claims, rather than the United States’ self-serving characterization. In determining whether the discretionary function exception applies, the Court must first identify “the conduct that allegedly caused the harm.” Muniz-Rivera, 326 F.3d at 15. Rakes and Dammers allege that the conduct that caused their harm “consists of a pattern of intentional and reckless wrongdoing by certain FBI agents, and the failure of their superiors to reasonably supervise them, all in violation of mandatory rules and regulations.” Pis.’ Opp’n at 10-11. While their case for direct causation would likely be strengthened by making a more straightforward “failure to investigate/failure to protect” argument, Rakes and Dammers choose to make a more attenuated argument that Connolly and Morris’s violations of mandatory rules and regulations caused them harm. This strategic move may make their FTCA claims more difficult to prove at trial, but for present purposes, it strengthens their argument that the discretionary function exception does not apply- Next, the Court must ask “(1) Is the conduct itself discretionary? (2) If so, does the exercise of discretion involve (or is it susceptible to) policy-related judgments?” Muniz-Rivera, 326 F.3d at 15. Conduct is discretionary if it “is a matter of choice for the acting employee.” Berko-vitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). “[Cjhallenged conduct is not discretionary if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Heinrich ex rel. Heinrich v. Sweet, 62 F.Supp.2d 282, 324 (D.Mass.1999), rev’d on other grounds, 308 F.3d 48 (1st Cir.2002). Rakes and Dammers argue that “[t]he FBI rules and regulations for handling informants as set forth in the Levi Memorandum, FBI Manual and revised FBI Guidelines [hereinafter “MIOG”], ... left no room for Defendants to exercise choice or judgment relative to undertaking the conduct that caused Plaintiffs’ harm.” Pis.’ Opp’n at 11. Rakes and Dammers give the following examples: (1) “The handling agent must admonish informants against participation in planning criminal acts or engaging in acts of violence. MIOG § 137-3.4(1)® and (g)-” (2) “When an FBI field office learns of the commission of a serious crime by an[ ] informant, FBI headquarters must be notified. MIOG § 137-4(5)(b).” (3) “When an FBI field office learns of participation by an informant in a serious act of violence, FBI headquarters must be notified. MIOG § 137-4(5)(c).” (4) “The handling agent must record and index all information furnished by or about informants. MIOG §§ 137-5(7); 137-8(1).” (5) “An FBI agent responsible for handling an informant does not have the discretion to reveal to that informant the identity of a person reporting a crime committed by that informant. MIOG § 137-5(10).” Id. at 12. A 1997 administrative inquiry by the FBI Office of Professional Responsibility found that FBI supervisors did not follow written review requirements, and an October 1999 Compliance Review found a total of twenty-seven instances of Bulger and Flemmi threatening someone, yet there is no record that FBI headquarters was ever notified of the threats. Id. Again, according to Rakes and Dam-mers’s theory of their claims, the conduct at issue in this case is Connolly and Morris’s disregard for various FBI rules and regulations. At least some of the rules and regulations cited by Rakes and Dam-mers are mandatory in nature. See, e.g., MIOG § 137-4(5)(b) (‘Whenever a field office learns of the commission of a serious crime by an informant or confidential source, even if unconnected with an FBI assignment, FBIHQ must be notified.” (emphasis added)). In fact, nothing in the United States’ brief suggests that these rules and regulations were actually discretionary in any way. Therefore, the conduct complained of — namely, Connolly and Morris’s violations of FBI rules and regulations — is not discretionary, and thus not covered by the discretionary function exception to the FTCA. C. Duty To Act Under Massachusetts Tort Law The United States argues that Rakes and Dammers’s FTCA claims are “not viable because there is no analogous private person liability under state law.” Def.’s Mem. at 16 (alterations omitted). Under the FTCA, liability can only arise under circumstances where “a private personf] would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In the instant case, the United States contends that Massachusetts law does not impose a duty on a private person to protect a third party. Def.’s Mem. at 17. Specifically, the United States argues that Massachusetts courts have applied section 314 of the Restatement (Second) of Torts (1966), see id. at 18, which provides that “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose a duty to take such action.” Id. at 18 n. 11. While this is true, as will be discussed in more detail below, Massachusetts appears to recognize some exceptions to the general rule expressed in section 314. 1. The Section 321 Exception The exact issue of Massachusetts law presented here was addressed recently by Judge Lindsay on a motion to dismiss in Estate of Davis ex rel. Davis v. United States, 340 F.Supp.2d 79 (D.Mass.2004), a case involving allegations that the FBI wrongfully permitted Bulger and Flemmi to engage in various crimes, including the murder of Debra Davis. Judge Lindsay held that although Massachusetts law does not, in general, impose a duty on a private person to protect a third party from harm, it has “embraced the principle, if not the actual text,” of section 321(1) of the Restatement (Second) of Torts (1965), which provides that “[i]f the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.” Davis, 340 F.Supp.2d at 90. In support, Judge Lindsay cited Commonwealth v. Levesque, 436 Mass. 443, 449-50, 766 N.E.2d 50 (2002), a case- in which the Supreme Judicial Court noted that “[although we have yet to recognize explicitly § 321 as a basis for civil negligence, we have expressed agreement with its underlying principle. It is consistent with society’s general understanding that certain acts need to be accompanied by some kind of warning by the actor.” (citation omitted). The court in Levesque held the defendants criminally liable for the deaths of six firefighters who died in a warehouse fire that the defendants had accidentally started, but failed to report or to control. Judge Lindsay reasoned in Davis that “[i]f an individual can be criminally liable for failing to mitigate a hazard of his own creation that results in death, it follows that he also can be subject to civil liability in those circumstances.” Davis, 340 F.Supp.2d at 90. Rakes and Rammers urge this Court to adopt Judge Lindsay’s ruling in Davis that Massachusetts law recognizes section 321. While the reasoning in Davis is convincing in the context of murder, it is unclear whether the Supreme Judicial Court would impose a duty in the instant case where the only physical harm alleged is emotional distress. Section 321(1) specifies conduct that creates “an unreasonable risk of causing physical harm’’ and provides that a private person may be “under a duty to exercise reasonable care to prevent the risk from taking effect.” Ultimately, even if this Court agrees with Judge Lindsay that Massachusetts recognizes the section 321 exception, it is uncertain whether the Supreme Judicial Court would apply it to this particular case. 2. The “Special Relationship” Exception The applicability of section 321 aside, the United States concedes that under Massachusetts law, a duty to act does extend “to those who have relied in some special way upon the defendant, to those whom, defendants have helped to place in a position where they are likely to depend upon his avoiding negligent omissions.” Def.’s Mem. at 19 (quoting Carrier v. Riddell, Inc., 721 F.2d 867, 868-69 (1st Cir.1983)) (internal quotations omitted). In Carrier v. Riddell, Inc., a case governed by Massachusetts law, the First Circuit explained when a duty to help arises: Speaking in terms of classical tort principle, when one claims that negligence lies in the commission of an act, a defendant’s duty not to behave negligently typically extends to include all those whom the defendant might reasonably have foreseen to be potential victims of the negligence. Palsgraf v. Long Island Railroad Co., 248 N.Y. at 341-43, 162 N.E. 99 ... Restatement (Second) of Torts, § 281. But where negligence consists of an omission — a failure to act- — -a defendant’s duty not to act negligently is more limited. It extends to those who have relied in some special way upon the defendant, to those whom defendants have helped to place in a position where they are likely to depend upon his avoiding negligent omissions. See Restatement (Second) of Torts, §§ 314-324A ... Thus, a passerby seeing a man drown in a pond may have a moral obligation to extend a helping hand, but he does not necessarily have a legal obligation to do so. Osterlind v. Hill, 263 Mass. 73[, 160 N.E. 301] ... (1928) ... Restatement (Second) of Torts, § 314 (“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”). If, however, the presence of the passerby, say, in the costume of a lifeguard, reasonably led the drowning man to go for a swim, the passerby might then be obliged to make efforts to help. See ... Restatement (Second) of Torts, § 314A (special relations giving rise to duty to aid or protect). Carrier, 721 F.2d at 868-69. The Supreme Judicial Court has explained that the special relationship can exist between the defendant and the plaintiff or between the defendant and the third party wrongdoer: The Restatement (Second) of Torts § 315 recognizes two types of special relationships that may form the basis of an exception to the general principle that a person has no duty to control the conduct of a third person. One exception is based on the finding of a special relation between the actor (i.e. the person whose duty is at issue) and the potential plaintiff.... The other exception set forth in the Restatement arises when there is a special relation between the actor and the third person. We have been criticized for overlooking this portion of the Restatement in our analy-ses .... ” Jean W. v. Commonwealth, 414 Mass. 496, 513, 610 N.E.2d 305 (1993); see also Mosko v. Raytheon Co., 416 Mass. 395, 402 n. 7, 622 N.E.2d 1066 (1993) (recognizing that section 315 provides “that a person may have a duty to control the actions of another so as to prevent harm to third parties if a ‘special relation’ exists between the person and the other who should be controlled”). With regard to the second type of special relationship, section 315 provides that “[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct .... ” Restatement (Second) of Torts, § 315. According to Rakes and Dammers, there is no dispute that there was a “special relationship” between Bulger and Flemmi and the FBI. Pis.’ Opp’n at 17. The United States does not deny this, but rather argues that the only relationship relevant to the inquiry is that between Rakes and Dammers and the FBI. See Def.’s Mem. at 19.' The United States’ position runs counter to Jean W.’s explication of the two types of special relationships recognized in section 315. If there indeed is no dispute between the parties that a special relationship existed between the FBI and Bulger and Flemmi, then it would appear likely that the Supreme Judicial Court would hold that a duty of care arises in this case under section 315. See Davis, 340 F.Supp.2d at 93 (“The alleged relationship the government had with Flemmi and Bul-ger was a ‘special relationship’ within the meaning of tort law, creating a duty owed to the general public to control them.”). 3. The Section 876(b) Exception The Supreme Judicial Court has recognized that “[f]or harm resulting to a third person from the tortious conduct of another, a person is liable if he ... (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other.” Nelson v. Nason, 343 Mass. 220, 222, 177 N.E.2d 887 (1961) (quoting Restatement (First) of Torts § 876(b) (1939)) (holding a drag racer liable for deaths , resulting from a crash between the decedent and another car); see also Jacobs v. Castronovo, 59 Mass.App.Ct. 1108, 797 N.E.2d 946 (2003) (“[T]hough not explicitly adopted in Massachusetts, [Restatement (Second) of Torts § 876] has been cited in appellate decisions and, in some instances, has provided the basis for recovery.” (quoting Kurker v. Hill, 44 Mass.App.Ct. 184, 189, 689 N.E.2d 833 (1998) (internal quotations omitted)).) Judge Lindsay held that section 876(b)’s “substantial assistance” rule applied in Davis. See Davis, 340 F.Supp.2d at 93 (“In allegedly permitting Flemmi and Bul-ger to commit crimes with impunity and not. warning the foreseeable victims of those crimes, the government gave Flem-mi and Bulger ‘substantial assistance’ in murdering Davis.”). In Davis, Judge Lindsay cited an instructive case from the D.C. Circuit, Hal-berstam v. Welch, 705 F.2d 472 (D.C.Cir. 1983), which was cited with approval in Alberts v. Devine, 395 Mass. 59, 71, 479 N.E.2d 113 (1985). The court in Halber-stam applied section 876(b) to hold that the defendant could be found civilly liable for a murder her boyfriend committed while burglarizing a home. Although the defendant was not at the scene of the crime, the court found that she helped her boyfriend run a criminal enterprise that he was advancing when he committed the murder. 705 F.2d at 488. Even though her acts in disposing stolen goods “were neutral standing alone, they must be evaluated in the context of the enterprise they aided.” Id. In determining whether the defendant had given “substantial assistance” to her boyfriend, the court looked at “the nature of the act encouraged; the amount [and kind] of assistance given; the defendant’s absence or presence at the time of the tort; [her] relation to the tortious actor; and the defendant’s state of mind.” Id. at 483-84 (citing Restatement (Second) of Torts § 876(b) cmt. d (1979)). Although neither party has cited section 876(b) in their briefs, Judge Lindsay’s Davis decision is persuasive. It appears that the “substantial assistance” theory may be a viable one for Rakes and Dam-mers as well. D. Conclusion Of the three issues raised by the United States in its motion for summary judgment on the FTCA claims, the most difficult one for Rakes and Dammers to overcome is the final question of whether Massachusetts recognizes a duty to act and, if so, under what circumstances. Although Massachusetts courts have not yet reached a case as unique — and disturbing — as this one, the Court believes that if presented with the facts of this case, the Supreme Judicial Court would rule that Rakes and Dammers have alleged viable negligence claims based on the FBI’s failure to act. The Court, however, need not speculate further on whether Massachusetts would apply Restatement (Second) of Torts §§ 321, 315, and 876(b), or some other exception to Rakes and Dammers’s claims. For reasons set forth in infra section II, the Court does not reach the United States’ motion for summary judgment. II. UNITED STATES’ RENEWED MOTION TO DISMISS THE FTCA CLAIMS AS TIME-BARRED UNDER THE APPLICABLE STATUTE OF LIMITATIONS Rakes and Dammers originally filed their FTCA claims on May 11, 2001. The United States first moved to dismiss Dam-mers’s complaint on statute of limitations grounds on August 20, 2002. That motion was taken under advisement on October 22, 2002 and, after a fair amount of internal waffling, denied without opinion on March 20, 2003. On September 30, 2004, the United States filed a renewed motion to dismiss Rakes and Dammers-’s claims as time-barred under the FTCA’s two-year statute of limitations, 28 U.S.C. § 2401(b), relying on the First Circuit’s recent decision in McIntyre v. United States, 367 F.3d 38 (1st Cir.2004), discussing the FTCA accrual standard and applying it to two cases involving the FBI’s relationship with Bul-ger and Flemmi. The United States argues that under McIntyre’s objective accrual test, Rakes and Dammers should have discovered the factual basis for their FTCA claims before the cut-off date of May 11, 1999. In opposition, Rakes and Dammers contend their claims did not accrue until September 15, 1999, the day Judge Wolf issued his opinion in United States v. Salemme, 91 F.Supp.2d 141. Given the import of McIntyre to this case, the statute of limitations issue deserves a second look. A. Facts 1. Judge Wolfs Factual Findings In Salemme Regarding The Extortion of Rakes and Dammers’s Liquor Store On September 15, 1999, Judge Wolf issued a lengthy decision in United States v. Salemme, laying out a possible pattern of corruption involving FBI agent Connolly and his supervisor Morris, and Bulger and Flemmi, two leaders of the Winter Hill Gang. The opinion recounted that since the 1970s, Bulger and Flemmi were top-level FBI informants providing information to the agency about La Cosa Nostra. It also suggested that Bulger and Flemmi had received special treatment from the FBI, including protection from prosecution and access to the names of other informants. Salemme, 91 F.Supp.2d at 148-63, 322. Relying on the September 29,1998 testimony of Dammers’s uncle, Boston Police Detective Joseph Lundbohm, and the June 4, 1998 testimony of Supervisory Special Agent of the Boston Office James A. Ring, Judge Wolf made several factual findings relevant to Rakes and Dammers’s extortion claims: In about January 1984, Connolly received very reliable information concerning an ongoing extortion by Bulger and Flemmi. In violation of FBI policy and practice, Connolly did not record the information or disclose it to his Supervisor as required by the FBI Guidelines. Nor did he try to obtain the testimony of the victims or conduct any other investigation. Instead, he told Bulger of the charges. In January 1984, Joseph Lundbohm was a Boston Police Detective. Lund-bohm Sept. 29, 1998 Tr. at 112-18. Lundbohm’s niece, Julie Rakes, and her husband Stephen had recently bought a liquor store in South Boston. Id. at 116. Bulger and Flemmi evidently decided that the store would be an excellent hub for their activities. They, and Kevin Weeks, visited the Rakes and said they wanted to buy the liquor store. Id. The Rakes told them that it was not for sale. Id. Flemmi responded by pulling out a gun, commenting on how lovely the Rakes’s young child was, and reiterating that they were going to buy the liquor store. Id. at 116-17. The Rakes sought Lundbohm’s assistance, telling him what occurred. Id. at 116. Lundbohm knew that Bulger and Flemmi were reputed to be dangerous members of organized crime. Id. at 138. He felt that the FBI would be the most appropriate law enforcement agency to investigate the ongoing extortion. Id. at 134. He did not know that Bulger and Flemmi were FBI informants, or that Connolly was their handler. Id. at 123, 145. Lundbohm was acquainted with Connolly professionally, knew that he was involved in investigating organized crime and, with the Rakes’s consent, decided to speak with Connolly in an effort to prompt an FBI investigation. Id. at 118. Lundbohm related to Connolly what the Rakes had told him. Id. at 119. Connolly asked whether the Rakes would “wear a wire” to record conversations with Bulger, Flemmi, and Weeks. Id. at 119, 126. Lundbohm indicated that he would advise them, not to do so. Id. Connolly responded that he would take the information, but did not feel that there was much that the FBI could do. Id. Connolly made no record of the information Lundbohm had provided to him. Nor did he disclose it to Ring, who had become the Acting Supervisor of. the Organized Crime squad in January 1983. Ring June 4, 1998 Tr. at 44. Connolly did, however, tell Bulger of his conversation with Lundbohm. Bulger subsequently urged the Rakes to “back off.” Lundbohm Sept. 29, 1998 Tr. at 122. Lundbohm correctly inferred that Bul-ger had learned that the Rakes had been trying to generate an FBI investigation of him. Id. at 122,139-40. The FBI did not investigate the extortion of the Rakes in any way. More specifically, Connolly did nothing to attempt to obtain the testimony of Mr. and Mrs. Rakes. Nor did he do anything else to acquire evidence of the effort of Bulger and Flemmi to frighten them into selling their liquor store. In any event, the extortionate scheme succeeded. The Rake's reluctantly sold their liquor store to Bulger and Flemmi. Id. at 117. It was re-named the South Boston Liquor Mart, and in the near future became a focus of the investigative efforts of several law enforcement agencies, not including the FBI. Salemme, 91 F.Supp.2d at, 215-16. The facts of the 1984 extortion as alleged in Rakes and Dammers’s complaints closely track Judge Wolfs findings in Sa-lemme. The complaints add, however, that for the next ten years, Rakes and Dammers continued to receive threats from the Gang, including a threat delivered by Bulger to Rakes in 1991, right before Rakes was to testify before a grand jury. See, e.g., Rakes Compl. ¶¶ 355-360. The complaints allege that Rakes, out of fear, testified falsely before the grand jury in 1991 and again in 1995, and was later convicted of perjury. Id. ¶¶ 361-368. 2. Boston News Coverage Of The FBI’s Relationship With Bulger And Flemmi As early as September 20, 1988, the Boston Globe reported that the FBI “has for years had a special relationship with Bulger that has divided law enforcement bitterly and poisoned relations among many investigators.” The Globe Spotlight Team, The Bulger Mystigue: Law Enforcement Officials’ Lament About An Elusive Foe: Where Was Whitey ?, Boston Globe, Sept. 20, 1988, at 18. The 1988 article specifically questioned the propriety of Connolly’s, relationship with Bulger, yet, like many other news pieces that followed over the years, it also reported the FBI’s vehement denials of any wrongdoing. See, e.g., id. at 19 (quoting James F. Ahearn, special agent in charge of the Boston office, as unequivocally denying that the FBI gave any “special treatment” to Bulger); Dick Lehr, Finnerty Is Attorney For FBI Agent, Boston Globe, March 24,1989, at 16 (rejecting “the notion that Bulger has' had relations with the bureau that have left him free of its scrutiny”); Kevin Cullen, Southie Is His Hometown; Whitey Bul-ger: Man And Myth, Boston Globe, Aug. 12, 1990 (reporting that Bulger’s informant relationship with the FBI “has led some in law enforcement who have targeted Bulger to suspect that some FBI agents have somehow helped Bulger avoid prosecution”); Dick Lehr & Kevin Cullen, Liguor Purchase Fuels Friction Over FBI-Whitey Bulger Tie, Boston Globe, Nov. 11, 1990, at 44-45 (reporting the FBI’s purchase of liquor from the South Boston Liquor Mart, the “widely held perception in law- enforcement that Bulger has ex-plotted the FBI,” and the FBI’s strong denials of any impropriety). General suspicions regarding the FBI’s relationship with Bulger continued into the 1990s, as Bulger consistently managed to stay one step ahead of the law. After indictments were unsealed against Bulger and Flemmi, the Boston Globe reported that “[s]ome prosecutors concede [Bulger] may be able to counter the racketeering charge with an allegation of his own — that his criminal activity was just part of doing his job for the FBI.” Gerard O’Neill, Dick Lehr, & Kevin Cullen, New Team, Tactics Hastened Whitey Bulger’s Fall, Boston Globe, March 5, 1995. According to the same article, this sentiment was echoed by an unnamed, “high-level law enforcement official” who suggested that “there would be as much trouble as glory for the FBI in building a case against Bulger.” Id. Despite the rumors of impropriety, the Boston Globe reported in 1995 that “[n]o one has ever shown the FBI to be an active protector of Bulger — indeed, such a view is widely condemned as grossly unfair.” Dick Lehr, Bulger’s Flight Spares FBI Burden Of Ties Being Aired, Insiders Say, Boston Globe, March 5, 1995, at 24. Evidence of the FBI’s protection of Bul-ger and Flemmi first began to surface in the press during the summer of 1997. On June 26, 1997, the Boston Globe reported that Flemmi was asserting in the Salemme proceedings that FBI agent Morris gave him and Bulger assurances that they could continue to commit crimes without risk of prosecution in exchange for information about organized crime activities. Patricia Nealon, Flemmi Says He, Bulger Got FBI’s OK On Crimes, Boston Globe, June 26, 1997, at A1 (attaching Flemmi’s affidavit attesting that “Mr. Morris told Mr. Bulger and I that we could do anything we wanted so long as we didn’t ‘clip anyone.’ On several occasions, ... Mr. Bulger and I were assured that we could be involved in any criminal activities short of committing murder and we would be ‘protected.’ I operated and relied upon this express agreement with the FBI”). It was also reported that Flemmi was contending in the Salemme proceedings that the FBI had tipped him to the date that his indictment was to be returned so that he could flee. Id. The Boston Globe reported, however, that Flemmi’s affidavit was contradicted by an affidavit filed by Paul E. Coffey, chief of the Justice Department’s Organized Crime and Racketeering Section, stating that Flemmi and Bulger were warned that they were not authorized to commit crimes unless they received specific permission, which they did not receive. Id. On the other hand, the article also reported that Flemmi’s contentions were supported by a January, 1995 report by the chief division counsel of the Boston office of the FBI concluding that Flemmi’s handlers had implicitly authorized his illegal gambling activities and involvement in La Cosa Nostra policy-making. Id. On December 5, 1997, the Boston Herald reported Judge Wolfs statement that the FBI’s Office of Professional Responsibility found “no evidence of continuing criminal conduct within the statute of limitations” by Morris or Connolly. Ralph Ranalli, Justice Dept. Clears Ex-FBI Agents In Mob Case, Boston Herald, Dec. 5, 1997, at 24 (internal quotations omitted). The article added that notwithstanding the report, Morris and Connolly might still invoke their Fifth Amendment rights against self-incrimination if called to testify in the Salemme proceedings. Id. On January 7, 1998, the Boston Herald reported on the opening arguments in the Salemme proceedings: Winter Hill wiseguy and FBI informant Stephen “The Rifleman” Flemmi said he was rewarded for his work for the agency with a free pass on murder, attempted murder and fugitive charges in the mid-1970’s, defense lawyers alleged yesterday. ' The alleged promise and delivery of that protection helped seal Flemmi’s loyalty to the bureau for the next 20 years and was proof that the FBI gave the Quincy gangster “immunity” from prosecution for his crimes, the lawyers said during opening arguments in hearings on the FBI’s informant relationships with Flemmi, 63, and ... Bulger, 67.... In a brief opening statement yesterday, a federal prosecutor scoffed at the defense assertions, saying they were tantamount to Flemmi saying he was a “Junior G-Man” with a license to kill. “He’s saying T can kill people! I can blow up lawyers!” ’ Assistant U.S. Attorney Fred M. Wy'shak said. “Isn’t that preposterous?” Ralph Ránalli, Mobster: I Had License To Kill Flemmi Says FBI Knew He Was Murderer, Boston Herald, Jan. 7, 1998. The article also stated that Connolly would not testify in the proceedings, citing his Fifth Amendment right not to incriminate himself. Id. On January 9, 1998, the Boston Globe published a story stating that “[t]he FBI had looked the other way before when it came to their prized informants” Bulger and Flemmi: [A]fter Bulger and Flemmi were named as suspects in the gangland-style murders of a millionaire jai alai company owner and an associate, the FBI continued taking information from them, even after each refused to take a polygraph test in connection with the slayings. So shielded were Bulger and Flemmi that the head of the FBI’s Boston office, James W. Greenleaf, testified yesterday that he didn’t know that Bulger and Flemmi had refused to take lie detector tests, nor was he told that the two were implicated in gambling, loansharking, drug dealing and extortion. Greenleaf, who headed the Boston FBI office from November of 1982 until December of 1986, testified at length about a 1984 investigation undertaken by the DEA and the Quincy police into Bulger and Flemmi’s alleged trafficking in cocaine. [Djespite its willingness to assist the DEA in its investigation of Bulger and Flemmi, Greenleaf acknowledged under questioning by Flemmi’s lawyer ... that the FBI never initiated a probe of Bul-ger or Flemmi while Greenleaf was in charge of the Boston office. He also said he was not aware that Bulger and Flemmi had refused to take a polygraph test when questioned about the murders of World Jai Lai owner Roger Wheeler and associate John Callahan. Patricia Nealon, FBI Loyalty To Mob Duo Is Detailed: DEA, Others Kept In Dark About Bulger, Flemmi Ties, Boston Globe, Jan. 9, 1998, at Bl. The article also stated that Greenleaf and former Special Agent in Charge Lawrence Sarhatt had testified that Bulger and Flemmi were not given permission to commit crimes. Id. In a subsequent article, the Boston Herald reported that FBI agent Paul Rico likewise testified that he did not promise to protect Flemmi from prosecution in exchange for information on the Mob. David Weber, Flemmi’s Lawyer Contends Fed Let His Crimes Slide, Boston Herald, Jan. 14, 1998, at 10. In an article published on May 28, 1998, the Boston Globe, citing Globe interviews and grand jury testimony read in court, reported in detail the extortion of Rakes and Dammers’s liquor store, their complaint to Boston police detective Lundbohm, and Lundbohm’s report of the extortion to agent Connolly. Shelley Murphy, Mobster’s Takeover Of Store Recounted, Boston Globe, May 28, 1998, at Al. The news story recounted Bulger, Flemmi, and Weeks’s visit to the Rakes home in January 1984, their threats to Rakes’s family, and how “[t]hey carried a gun, a bag stuffed with $67,000 cash, and an offer Rakes couldn’t refuse.” Id. The article also reported that when Lundbohm “tried to help [the Rakes family] by reporting the strongarm tactics of Bulger and Flemmi to the FBI, he unwittingly talked to the very agent who was their ‘handler,’ John Connolly.” Id. According to the piece, Lundbohm said he knew Connolly from various cases he had worked on and had arranged to meet Connolly for coffee. Id. In an interview with the Boston Globe, Connolly admitted that “he vaguely recalls being told that the Rakeses were being threatened into selling their store, but that ‘they did not want to get wired up and they did not want to be witnesses.’ ” Id. The article went on to mention specifically Julie Rakes’s grand jury testimony and the perjury trial against Stephen Rakes. Id.; see also Shelley Murphy, Woman Says Bulger Shielded, But Husband Charged, Boston Globe, May 30, 1998, at B6 (discussing the liquor store extortion and reporting that Julie Rakes said at Stephen Rakes’s trial that “she couldn’t understand why the IRS is prosecuting her ex-husband [and] [s]he noted the FBI took no action against Bulger in 1984”); David Weber, Merchant’s Ex-Wife Details Mob Buyout, Boston Herald, May 31, 1998, at 5 (recounting Julie Rakes’s testimony regarding the extortion). On June 17, 1998, the Boston Globe reported that during a brief telephone interview with the newspaper, Connolly denied ever talking to Bulger about the extortion of Rakes and Dammers’s liquor store. Dick Lehr, Ex-detective’s Testimony OK’d In Perjury Trial, Boston Globe, June 17, 1998, at F12. The article quoted Connolly as stating: “I never had any reason to discuss my conversation with Mr. Lund-bohm with Mr. Bulger, and I never did.” Id. (internal quotations omitted). On the same day, the Boston Herald reported that according to Lundbohm’s testimony, after Lundbohm had spoken with Connolly about the extortion, Stephen Rakes told Lundbohm that “Whitey said to back off.” David Weber, Whitey Told Store Owner To Back Off From Authorities, Boston Herald, June 17, 1998, at 32. The article stated that “Lundbohm said he understood that to mean that ‘Bulger had some knowledge of the conversation with Mr. Connolly.’ ” Id. The article reported that Connolly again denied having any conversation with Bulger about the extortion. Id. Lundbohm testified that former Boston Police Superintendent Anthony DiNatale was the only other person who knew about his conversation with Connolly. Id. The Boston Globe reported Rakes’s conviction for perjury on June 25, 1998. Marcella Bombardieri, Jury Convicts Man Of Perjury For Denying Gangsters’ Coercion, Boston Globe, June 25, 1998, at B4. The article mentioned Flemmi’s contention that he was granted immunity from prosecution and Lundbohm’s report of the extortion to Connolly. Id. The Boston Globe published an article on July 22, 1998, specifically mentioning the Rakes and Dammers extortion and describing Bulger and Flemmi as career criminals “sanctioned” by the FBI: At the dawn of his deal with the FBI, James “Whitey” Bulger was an angry leg breaker at a Dedham restaurant looking to collect an unpaid loan. Leaning across a table, he gave the owner a choice: Pay, or have his ears cut off and stuffed in his mouth. Restaurateur Francis X. Green told his story to the FBI, expecting protection and prosecution. But Bulger had an ace in the hole. He worked for the FBI. Looking back, the 1976 incident at the Back Side Restaurant was a turning point. An extortion case, built on a credible, cooperative witness, might have stopped Bulger and his partner, Stephen “The Rifleman” Flemmi, from launching a 15-year crime spree. Instead, the FBI did nothing, sending a powerful message to two of the region’s most ruthless organized crime figures: As long as you’re with us, we won’t bother you. As a result, Bulger and Flemmi became sanctioned career criminals while spying on the underworld for the FBI. Despite solid evidence indicating Bulger and Flemmi were involved in murders, shakedowns, and drug dealing, the FBI looked the other way throughout the 1970s and 1980s. It made no difference who the victims were, fellow wise guys or innocent people. And it didn’t matter if the victims were willing to cooperate with the FBI or were scared silent. In some cases, the bureau even helped the gangsters by leaking information to them about ongoing investigations. Recent court testimony shows the deflected cases ranged from the momentous to the mundane, but the consistent thread running through most of them is the involvement of Bulger’s handler, former FBI agent John Connolly of South Boston. Some potential cases that went nowhere: — In 1982, a wise guy turned FBI informant was gunned down after Connolly, according to [Morris’s] testimony, told Bulger and Flemmi that the man had implicated them in a string of gangland slayings and the murder of an Oklahoma businessman. — In 1984, a Boston police detective told Connolly that Bulger and Flemmi were trying to seize a liquor store owned by the detective’s relatives with a “can’t refuse” offer. But Connolly did not report the incident to superiors and, within days, Bulger sent word to the victims that he knew they had complained to the FBI and warned them to “back off.” — In the late 1980s, FBI agents John Newton and Roderick Kennedy failed to document or follow up on a realtor’s claim that a gun-toting Bulger threatened to stuff him in a body bag if the realtor didn’t pay him $50,000. ■— In 1988, another FBI agent, supervisor John Morris, who [according to his own testimony] had pocketed $7,000 in payoffs from Bulger, warned Bulger and Flemmi that the FBI had tapped the telephone of a Roxbury bookmaker who worked for them. While indictments resulted from the wiretap, including some Boston policemen for taking payoffs, Bulger and Flemmi went untouched. Although there is evidence that Connolly protected Bulger and Flemmi, he was not alone. Supervisors and fellow agents often were- swayed by his claim there was insufficient evidence to target the pair or that they were too valuable to the FBI. For example, FBI agent James Blackburn testified he never pursued allegations that Bulger was shaking down a South Boston drug dealer in 1988 after Connolly told him it wasn’t true. And agent James J. Lavin III testified that in 1987 he ignored evidence that city workers erected guardrails, on private property outside the South Boston liquor store controlled by Bulger after Connolly reminded him that Bulger was an indispensable informant. In the end, Bulger and Flemmi were always suspects, but never defendants; always informants, never targets. Last April, Connolly refused to testify at federal court hearings exploring the FBI’s controversial relationship with Bulger and Flemmi, citing his Fifth Amendment right not to incriminate himself. In interviews, he has accused other agents of lying when they testified critically about his handling of Bulger and Flemmi. “I’m not a rogue agent,” Connolly said recently. “Anything I ever did, I did lawfully. I have no trouble with what I did. I did it for the FBI, all the way to D.C., constant oversight.” But the record now shows that the deal — protection for information — left the bureau shortchanged, co-opted, and compromised. In a telling aside during recent testimony, one of Connolly’s closest associates in the bureau, former agent Nicholas Gianturco, talked about entertaining Bulger and Flemmi at his Peabody home. “I felt comfortable having them to the house,” he said. “It was not an adversarial relationship.” Shelly Murphy, Cases Disappear As FBI Looks Away, Boston Globe, July 22, 1998, at Al. The article reported that Lundbohm had said that he suspected Connolly had tipped Bulger about their meeting regarding the extortion. Id. Although Connolly denied leaking the information, the article reported that “federal prosecutors said a search of FBI files failed to uncover any paperwork on [the incident],” and the article concluded that “[i]t appears Connolly made a unilateral decision to neither investigate the extortion nor pass it along to a supervisor.” Id. On September 23,1998, the Boston Herald ran an article summarizing the testimony of Supervisory Special Agent of the Boston Office James A. Ring in the Sa-lemme proceedings. David Weber, Ex-FBI Agent Accused Of Keeping Informant Info, Boston Herald, Sept. 23, 1998, at 27. The article stated that “Ring alleged that Connolly was clearly out of line when he failed to pass on information that Bulger and Flemmi committed extortion in 1984 against South Boston liquor store owner Stephen ‘Stippo’ Rakes by forcing Rakes to sell his store to them.” Id. Ring was quoted as testifying “I would have definitely expected (Connolly) to come to me and discuss it ... He didn’t have the authority to handle that on his own.” Id. The article also reported that “Ring said Connolly never said or indicated that he (Connolly) believed the two reputed mobsters had an immunity deal with the government.” Id. In an article specifically mentioning the extortion of Rakes and Dammers’s liquor store and Lundbohm’s meeting with Connolly, the Boston Globe reported on September 30, 1998 that Flemmi’s defense lawyers were arguing that Flemmi and Bulger were “protected by their bureau handlers, who violated the agency’s own guidelines.” Ralph Rinalli, Supervisor: Promises to Informants Tripped FBI, Boston Herald, Sept. 30, 1998, at 14. The article summarized the testimony of a former FBI supervisor who pointed out a “Catch-22” in the FBI’s handling of informants. Id. Although “[t]he guidelines call on the FBI, in certain circumstances, to notify other agencies when their informants have committed serious crimes,” the agency “is hamstrung by the promises made to keep [informants’] identities secret.” Id. B. Standard of Review and Accrual Under The FTCA On the United States’ motion to dismiss, the Court “must construe the complaint liberally, treating all well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiffs.” Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). In addition, in order to determine jurisdiction, the Court can consider evidence submitted by the parties and, if necessary, settle factual disputes. See Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986); Heinrich v. Sweet, 44 F.Supp.2d 408, 415 (D.Mass.1999). Therefore, it is appropriate to consider supplemental materials as they are attached to the pleadings before this Court. Such consideration does not, however, require the Court to treat this motion as one for summary judgment. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002) (“The attachment of exhibits to a Rule 12(b)(1) motion does not convert it to a Rule 56 motion.”). Recently, the First Circuit considered a consolidated appeal of Judge Lindsay’s dismissal of FTCA claim