Appeals court once again rejects verdict against FBI for role in two Bulger murders

The US Court of Appeals for the First Circuit today upheld an earlier decision to toss an $8.5 million verdict against the FBI for its role in letting Whitey Bulger and his henchmen kill an informant and the guy who was giving him a ride home, saying the families filed their lawsuit three weeks after the expiration of the statute of limitations.

In February, a three-judge panel overturned a lower-court award to the families of Brian Halloran and Michael Donahue. In the ruling today, the entire court voted 5-2 to reject the families' request for a rehearing.

Under the Constitution, federal courts may not make decisions based on sympathy to parties and may not displace the judgments made by Congress in nonconstitutional matters. The legal issue presented by these cases is not whether the conduct of the FBI was shameful; it was. It is not whether plaintiffs are victims of that conduct; they are.

However wronged the plaintiffs, the issue is whether these plaintiffs have complied with the stringent limitation period set by Congress for claims under the Federal Tort Claims Act.

In the ruling, the judges said that as much as they sympathize with the families of and, their only recourse is to ask Congress and the President for legislation that would extend their time period to file suit.

In a dissent, Judge Juan R. Torruella said the FBI's role in letting Bulger murder the men was such a "monstrous injustice" that, at the very least, the entire court owed them a new hearing:

Beyond its implications for the Donahue and Halloran families, this case has thrust renewed attention on the FBI's reliance on confidential criminal informants, and the obvious ways in which this relationship can become too cozy for comfort. Public trust in our institutions requires that when these institutions stray, they be held accountable and made to absorb the costs of their conduct. They ought not be perceived as operating with de facto impunity. Although it is hoped that these agencies will learn from these dreadful examples of government gone amuck, future reform is of little consolation to those injured by official malfeasance.

Judge Kermit Lipez also dissented:

There is nothing more hollow than expressions of sympathy by judges over an injustice that the law permits them to redress. There was no compelled outcome here. Instead, there was a serious misjudgment that perpetuates a grave injustice.

• Complete ruling