442 F.3d 7 (1st Cir. 2006), 05-1395, Rakes v. United States

Docket Nº:05-1395, 05-1396.
Citation:442 F.3d 7
Party Name:Stephen M. RAKES; Nichole Rakes; Meredith Rakes; Colby Rakes; Stippo's, Inc.; Gary W. Cruickshank, as Trustee in bankruptcy of Stephen M. Rakes, Plaintiffs, Appellants, v. UNITED STATES, Defendant, Appellee. Julie Rakes Dammers, Plaintiff, Appellant, v. United States, Defendant, Appellee.
Case Date:March 23, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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442 F.3d 7 (1st Cir. 2006)

Stephen M. RAKES; Nichole Rakes; Meredith Rakes; Colby Rakes; Stippo's, Inc.; Gary W. Cruickshank, as Trustee in bankruptcy of Stephen M. Rakes, Plaintiffs, Appellants,


UNITED STATES, Defendant, Appellee.

Julie Rakes Dammers, Plaintiff, Appellant,


United States, Defendant, Appellee.

Nos. 05-1395, 05-1396.

United States Court of Appeals, First Circuit

March 23, 2006

Heard Nov. 10, 2005.


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Douglas S. Brooks, with whom Paul V. Kelly was on brief, for Stephen M. Rakes et al.

Joseph F. McDowell III, with whom David S.V. Shirley and McDowell & Osburn, P.A., were on brief, for Julie Rakes Dammers.

Steve Frank, Attorney, Civil Division, U.S. Department of Justice, 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, Civil Division, were on brief, for the United States.

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Before Boudin, Chief Judge, Selya, Circuit Judge, and Stahl, Senior Circuit Judge.

STAHL, Senior Circuit Judge.

This case is the latest in a series of cases arising out of the unfortunate involvement of FBI Agent John Connolly with two Boston gangsters, James "Whitey" Bulger and Stephen "the Rifleman" Flemmi. Among the numerous crimes perpetrated by Bulger and Flemmi was their successful effort in 1984 to compel the plaintiffs in this action, Julie Rakes Dammers and Stephen Rakes, then married, to sell them their newly opened liquor store. Rakes and Dammers allege, and for purposes of these appeals we assume, that John Connolly, and therefore the U.S. government, bear some responsibility for the Rakeses' loss of their store.

Rakes and Dammers brought suit against the United States under the Federal Tort Claims Act (FTCA).1 Because the extortion took place in 1984, and Rakes and Dammers did not file an administrative claim until May 11, 2001, the FTCA's two-year statute of limitations would bar this action if the claim had accrued on the date of the injury. In a long line of cases, we have held that the start of the FTCA's limitations period may be delayed during a period in which an injured party has no way of knowing that he has been injured or that it was the government who caused the injury. We have also frequently considered claims that a statute of limitations, asserted by the government in defense against a claim, should be tolled on the equities. The question on appeal is whether, under the discovery rule or under any tolling principle, the FTCA claim at issue here accrued before or after May 11, 1999. Finding that the claim accrued more than two years before Rakes and Dammers filed their claims, and that the statute of limitations was not tolled on grounds of duress or fraudulent concealment, we affirm the decision of the district court dismissing the case for lack of subject matter jurisdiction.

I. Background

No factual question has been pressed on appeal, so we relate the facts as recounted by the district court, relying for some illustrative background information on earlier cases arising out of the same connection between the FBI and the Winter Hill Gang.

A. Prehistory

Founded in the 1960s, the Winter Hill Gang operated as a criminal syndicate in Massachusetts and beyond until its operations were disrupted in 1999. Based originally in Somerville, Massachusetts, the Winter Hill Gang prospered through participation in a variety of illegal activities, including loan-sharking, bookmaking, trafficking in arms and narcotics, money laundering, and outright extortion. Over the years, as its members achieved territorial dominance over areas that had been previously controlled by rival syndicates, among them La Cosa Nostra, which operated out of Boston's North End, the Winter Hill Gang broadened its reach to other locales. In particular, the group established a base of criminal operations in South Boston, and eventually conducted business from, among other places, a liquor store in that neighborhood known variously as the

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South Boston Liquor Mart, Columbia Wine and Spirits, and Stippo's Liquor Mart. This case involves the events that led up to the group's acquisition of that store.

Among the Winter Hill Gang's most notorious and powerful members were James J. Bulger, known as "Whitey," and Stephen Flemmi, known as "the Rifleman." Long before they attained prominence, both of these men became informants for the FBI. Flemmi was impressed into the service of the bureau in 1965, and was instrumental in bringing about its well-heralded success at prosecuting members of La Cosa Nostra, which was the dominant organized crime presence in Boston prior to the ascendance of the Winter Hill Gang. (Indeed, the FBI's successful campaign to fight La Cosa Nostra helped clear away the Winter Hill Gang's competition and contributed to Bulger and Flemmi becoming the renowned and powerful gangsters they became.) Bulger was convinced to become an informant in 1974. He was recruited to help the FBI in its crusade against La Cosa Nostra by his childhood acquaintance John Connolly, who joined the FBI's Boston office as an agent in the Boston Organized Crime unit in the mid-1970s.

Over the years, John Connolly developed a close working relationship with Bulger and Flemmi, and took extraordinary steps to secure their continued availability to the FBI as informants against La Cosa Nostra. The details of the relationship between Connolly and Bulger and Flemmi were laid out by Judge Wolf in his opinion in United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999), and it is not necessary to this case to rehearse all of the particulars of their interactions. The crucial point is that on a number of occasions, Connolly crossed a critical line by offering sanction to Bulger and Flemmi's activities, and in so doing made the FBI a partner in some of the Winter Hill Gang's criminal enterprises. Through Connolly, the FBI offered Bulger and Flemmi virtual immunity from prosecution for a wide range of racketeering activities. See id. at 208-15. In this case, the plaintiffs' claims against the government are based in part on the free reign that Bulger and Flemmi enjoyed to further the interests of the Winter Hill Gang.

B. The Liquor Store

In 1983, Stephen Rakes and Julie Rakes Dammers (then Julie Rakes: the couple divorced in 1990) opened a liquor store in South Boston, which they named "Stippo's Liquor Mart." In early 1984, Bulger and Flemmi evidently determined that the liquor store would be an ideal hub for their expanding illegal activities in South Boston, and resolved to take it from the Rakeses. Bulger, Flemmi, and an associate of theirs named Kevin Weeks visited Rakes at the Rakeses' home in January of 1984.2

The three men "let themselves into" the Rakes residence. Bulger told Rakes that the three of them had been paid to kill him, and that although they had decided not to do so, they planned instead to buy

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his liquor store. Rakes said that the recently opened store was not for sale, and Bulger replied that, in that case, Bulger intended to become the Rakeses' partner in the store. Rakes explained that he and his wife did not want any partners. Bulger grew angry at the rebuff, threatened to kill Rakes and simply take his store, and left the house with his associates in tow.

The three men did not stay away for long. Later that evening, they returned to the house and made themselves comfortable around the kitchen table. They displayed weapons, a gun and a switchblade, and threatened to kill Rakes. Flemmi picked up Rakes' one-year-old daughter, stroked her hair, and said that "it would be a shame for her not to see her father again." Eventually, having made clear that their threats were in earnest and that the Rakeses' lives were in danger, Bulger handed Rakes a brown paper bag containing roughly $65,000, stating that he would pay Rakes $25,000 more in the near future.3 Flemmi stated that the three gangsters had, with this transfer, become the new owners of the liquor store. They left the house.

In the next few weeks, the Rakeses fended off repeated attempts by Bulger and his men to force them to sign title to the liquor store over to Bulger. In fear, the family fled to Florida for a short time to avoid the gang members. After returning, they remained determined to keep their new store.

Julie Dammers' uncle, Joseph Lundbohm, was then a detective with the Boston Police Department. The Rakeses turned to Lundbohm for advice and assistance in dealing with Bulger and his crew of thugs. Lundbohm sought and received the Rakeses' permission to contact a friend on the FBI's Organized Crime squad. That friend turned out, to the Rakeses' misfortune, to be Agent John Connolly. Connolly expressed hesitation about assisting the Rakeses. He told Lundbohm that the FBI might be interested in helping the couple if they agreed to wear recording devices during conversations with Bulger and the others, but that if they did not want to wear the wires, they would not be useful to the FBI and the FBI was therefore unlikely to do anything about the extortion.

Lundbohm told Connolly that he would advise the Rakeses not to wear the wires and that in any event they were unlikely to want to do so, given the obvious danger involved. Connolly said that he did not feel there was much that he or the FBI could do to help the Rakeses. Lundbohm returned to the Rakeses to report the dispiriting news.

Internal FBI regulations in effect at the time purportedly required...

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