Callahan v. U.S.

• Citation: 426 F.3d 444
• Decision Date: 18 October 2005
• Docket Number: No. 04-2466.,04-2466.
• Parties: Mary Jane CALLAHAN, et al., Plaintiffs, Appellants, v. UNITED STATES of America, et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

426 F.3d 444

Mary Jane CALLAHAN, et al., Plaintiffs, Appellants, v. UNITED STATES of America, et al., Defendants, Appellees.

No. 04-2466.

United States Court of Appeals, First Circuit.

Heard May 4, 2005.

Decided October 18, 2005.

James P. Duggan, on brief, for appellants.

Steve Frank, Attorney, Appellate Staff, Civil Division, with whom Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan, United States Attorney, Jeffrey S. Bucholtz, Deputy Assistant Attorney General, and Robert S. Greenspan, Attorney, Appellate Staff, were on brief, for appellee United States of America.

William A. Brown, with whom Kate Miller Brown, were on brief, for appellee Robert Fitzpatrick.

Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and LIPEZ, Circuit Judge.

TORRUELLA, Circuit Judge.

In this appeal, we consider Plaintiff's claim against the United States under the Federal Tort Claims Act. The district court found that it did not have subject matter jurisdiction because Plaintiff's claim accrued more than two years before she filed her administrative complaint and that the doctrine of fraudulent concealment did not toll this requirement. Plaintiff contests these findings of the district court. We affirm.

I. Background

Mary Jane Callahan ("Plaintiff"), individually and as administratrix of the estate of John B. Callahan ("Callahan"), and members of her family filed suit for wrongful death and emotional distress arising from the murder of her husband. The suit is founded in a long and sordid history between Boston FBI agents and the Winter Hill Gang, an organized crime syndicate in Boston. Defendants are the United States and individuals who were once members of the FBI, the Winter Hill Gang, or both. This corrupt relationship produced many unfortunate victims, several of whom have already sought relief in the federal courts. See generally McIntyre v. United States, 367 F.3d 38 (1st Cir.2004); United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999), rev'd in part, sub nom., United States v. Flemmi, 225 F.3d 78 (1st Cir.2000).

This appeal concerns only Plaintiff's claim as administratrix of Callahan's estate against the United States. The district court dismissed all claims by individual plaintiffs for lack of subject matter jurisdiction for their failure to file an administrative claim. Callahan v. United States, 337 F.Supp.2d 348, 350 n. 1 (D.Mass.2004). In an order dated September 28, 2004, the district court also dismissed all claims against individual defendants for expiration of the statute of limitations or want of prosecution. Plaintiff does not appeal those dismissals.

The claim against the United States is through the Federal Tort Claims Act (FTCA), under which the United States consents to suits against it in tort. 28 U.S.C. § 1346(b); 28 U.S.C. §§ 2671-2680. One condition of the FTCA is that a plaintiff must file an administrative claim within two years of the accrual of her claim. Id. § 2401(b). Below, the government did not dispute the Plaintiff's jurisdictional allegations, and the district court accepted Plaintiff's allegations as true. Even accepting the Plaintiff's allegations as true, however, the district court found that her claim accrued more than two years before she filed her administrative complaint. The court below thus dismissed the remaining claim for lack of subject matter jurisdiction. Callahan, 337 F.Supp.2d at 370.

We present a summary of the factual events surrounding Callahan's murder as alleged by the Plaintiff and supplemented by uncontested facts from news reports and court documents. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir.2001).

A. The Winter Hill Gang and the FBI

The Winter Hill Gang was the name for the dominant organized crime syndicate in the Boston area in the 1970s and 1980s. The Gang's activities included murder, bribery, extortion, loan sharking, and illegal gambling. James "Whitey" Bulger ("Bulger") and Stephen "The Rifleman" Flemmi ("Flemmi") were two prominent members of the Gang.

In 1967, FBI Agent H. Paul Rico ("Rico") recruited Flemmi as an FBI informant. In 1976, Agent John Connolly ("Connolly") recruited Bulger as an informant. Connolly and Bulger were childhood neighbors in South Boston. Eventually, both Bulger and Flemmi were promoted to the status of "Top Echelon" informant. The Winter Hill Gang's main rival in crime was the Boston branch of La Cosa Nostra, another organized crime syndicate. The FBI wanted to bring down La Cosa Nostra and Bulger and Flemmi were very pleased to help it do so.

This convenient relationship eventually took a turn for the worse. While they were informants, Bulger and Flemmi were responsible for multiple murders, including those of Roger Wheeler, Brian Halloran, and Callahan, to be discussed below. The FBI, intent on keeping its informants happy, turned a blind eye to their crimes and failed to follow FBI guidelines for dealing with informants. For example, FBI agents interfered with the investigation of Bulger and Flemmi for the murder of Callahan by preventing Oklahoma FBI agents from interviewing them. The FBI also informed Bulger and Flemmi of a "bugged" location to prevent them from incriminating themselves. At the same time, Bulger and Flemmi ingratiated themselves to the FBI by assisting the agents. For example, when FBI Agent John Morris ("Morris"), Agent Connolly's supervisor, was in Georgia for training and he wanted his secretary to fly to meet him for a romantic tryst, Bulger and Flemmi paid for her plane ticket. This cozy relationship created a protective shield around Bulger and Flemmi that emboldened them in their criminal activities — so much so that at one point Flemmi stated that the FBI gave Bulger and him free reign to commit any crime short of murder.

Eventually, this cozy relationship between the FBI and Bulger and Flemmi broke down when more reputable law enforcement agents charged Bulger and Flemmi with numerous crimes. Agent Connolly tipped off Bulger, who, to this day, is in hiding from law enforcement authorities. Agent Morris was granted immunity for his testimony, and he testified against Flemmi.

B. Callahan's Death

Callahan was chief executive officer of a business called World Jai Alai ("WJA"), owned by one Roger Wheeler ("Wheeler"). WJA operated "frontons" where customers could place bets on the outcome of jai alai matches. In an unusual coincidence, Callahan hired Rico, now retired from the FBI and the one who had recruited Flemmi as an FBI informant, as head of security for WJA. Around 1981, Callahan learned that individuals were skimming profits from WJA. He was concerned and reported his suspicions to Wheeler.¹ In response, Wheeler began an audit of WJA. To prevent Wheeler from discovering their profit skimming, Bulger and Flemmi wanted Wheeler killed. At their direction, John Martorano ("Martorano"), another member of the Winter Hill Gang, murdered Wheeler in May 1981.

In January 1982, one Brian Halloran ("Halloran") began cooperating with the FBI while being prosecuted for an unrelated murder. He told the FBI that Bulger, Flemmi, and Callahan had asked him to murder Wheeler but that he had declined the offer.² Halloran also stated that Bulger, Flemmi, Callahan, and Martorano were ultimately responsible for Wheeler's murder. Agent Morris relayed this information to Agent Connolly, who in turn informed Bulger and Flemmi. In May 1982, Bulger and Flemmi had Halloran killed to prevent his further cooperation with law enforcement authorities.

In August 1982, Callahan's body was found in the trunk of a car at the Miami airport. Plaintiff makes two allegations as to a direct connection between the FBI and Callahan's death.³ The first is from Plaintiff's complaint in this suit, and the second is from her administrative complaint.

The first allegation is that the FBI's investigation of the Wheeler murder eventually turned to Callahan. Around June 1982, Connolly informed Bulger and Flemmi that Callahan was under investigation. Although it is not clear how Callahan could have any incriminating information about the Wheeler murder, Bulger and Flemmi directed Martorano to kill Callahan to prevent him from cooperating with law enforcement authorities.

The second allegation is that Callahan told Rico that he feared that Wheeler's death was related to Wheeler's knowledge of the profit skimming at WJA. Rico told this to Morris and Connolly who in turn told Bulger and Flemmi. Bulger and Flemmi directed Martorano to kill Callahan because he knew of their profit skimming.

C. News Reports of FBI Misconduct

As early as March 1996, Boston newspapers reported possible FBI complicity in the Callahan murder. A March 1996 article reported that Callahan, Bulger, and Flemmi had asked Halloran to kill Wheeler; Callahan told Halloran that Martorano had killed Wheeler with Flemmi's help; investigators were probing whether the Wheeler, Halloran, and Callahan murders were related; and "sources and published reports have long said that Bulger was an informant for the FBI." Ralph Ranalli, The Jai Alai Murders, Boston Herald, Mar. 10-11, 1996. A July 1997 article stated that the FBI kept using Bulger and Flemmi as informants even though they were suspects in the murders of Wheeler, Halloran, and Callahan. Ralph Ranalli, FBI Used Whitey Despite his Ties to Three Murders, Boston Herald, July 7, 1997. A December 1997 article reported that federal court hearings will "probe whether FBI agents and federal organized crime prosecutors violated any federal laws or guidelines in the way they handled informants" like Bulger and Flemmi, and that Florida police investigating the Callahan murder are "hoping [the] hearings . . . will lead to a break in the case." Ralph Ranalli, Police Reopen Mob Murder Probe, Boston Herald, Dec. 15, 1997.

National television broadcasts reported similar information. On March 15, 1998, the broadcast "CNN Impact" reported that Bulger and Flemmi were FBI...