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FCA Qui Notes
March 19, 2019

"Counterintuitive" but Perhaps Not "Absurd?"—Supreme Court Hears Argument on Whether Relators Can Take Advantage of Three-Year Tolling and Government Knowledge in FCA Cases

Qui Notes: Unlocking the False Claims Act

It has been a busy week for False Claims Act watchers at the Supreme Court. The appetizer was the Court's certiorari denial yesterday in Prather, the other potential vehicle for a second look at Escobar, and today's entrée was oral argument in Cochise Consultancy, Inc. v. United States ex rel. Hunt, where the Supreme Court will decide whether relators, like the government, can take advantage of the three-year tolling provision of 31 U.S.C. § 3731(b)(2), and if so, whether it is the relator's knowledge that counts. As Justice Kavanaugh observed at oral argument, allowing relators to take advantage of tolling, while at the same time pinning the tolling on the government's knowledge, might be counterintuitive, but is it such an absurd reading that the Court might depart from the statutory text?

In Cochise, the Eleventh Circuit held that relators in non-intervened cases can take advantage of the FCA tolling provision that allows suit to be brought within three years of the date on which the responsible "official of the United States" learns of the potential fraud. Such a reading would allow relators to go beyond the six-year statute of limitations even when the relator knows of the fraud but sits on his rights up to the maximum ten-year statute of repose. The courts of appeals are literally all over the map—with the majority view (adopted by the Fourth, Fifth, and Tenth Circuits) that only the government can rely on this statutory tolling provision; the Ninth Circuit's view that relators can rely on tolling but the three years runs from the relator's knowledge of the fraud; and the Eleventh Circuit holding (in Cochise) that relators can rely on tolling and it is the government's knowledge of the fraud that counts. The Supreme Court granted certiorari to resolve the split, and today heard argument. Your lead author above attended and hastily scribbled notes; any errors of course are entirely his fault.

The point of contention was whether to adopt a strict construction of the statutory text, which should not be overridden unless absurd, or a more practical reading that would not allow relators unduly to slumber on their rights. There was wide agreement, and some laughter, with Justice Alito's observation that the FCA was a "terribly drafted statute," which, if he could "grade whoever drafted it," would not be awarded top marks. Be that as it may, it now falls on the Court to interpret it.

And the challenge is whether to construe the term "civil action" in Section 3731(b)(1) differently than in Section 3731(b)(2). There is no textual hook on which to hang a difference between intervened and non-intervened cases as the Section does not mention relators at all. It simply provides that a "civil action" may be brought either within six years from the violation (Section 3731(b)(1)) or not more than three years from when the material facts are known by the responsible United States official, up to a maximum of ten years (Section 3731(b)(2)). Several justices, including Justices Kavanaugh and Gorsuch, found no textual ambiguity in Section 3731(b) itself that would allow for a rule interpreting "civil action" one way for the government and another for relators. How can the Court read this term in Section 3731(b)(1) to apply to all FCA actions, intervened or not, but apply the very same term only to government cases for purposes of tolling under Section 3731(b)(2)?

The answer might just be that the Court previously has held that "Congress used the term 'action under section 3730' imprecisely in § 3731." Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418 (2005). In Graham County, the Court considered what statute of limitations to apply to FCA retaliation claims, holding that Section 3731(b)'s statute of limitations was inapplicable and instead courts should look to analogous state statutes of limitations. To get there, however, the Court pointed out that Congress was "imprecise[]" in defining "action," and that "Congress sometimes used the term to refer only to a subset of § 3730 actions." Graham County, 545 U.S. at 418. It therefore held that the statute of limitations for a "civil action under section 3730" found in Section 3731(b) did not apply to retaliation claims under Section 3730(h). As you might imagine, then, there was much debate at argument about the import of Graham County and whether it should be limited to the situation there presented—that is, determining the statute of limitations for retaliation claims—or whether it justified interpreting "civil action" differently in (b)(1) and (b)(2).

While there was some discussion about the absurdities that could result, for example, whether it was possible for a relator to have a longer statute of limitations than the government (the Solicitor General vehemently denied it was), there was much focus on whether relators could sleep on their rights. Where a relator knows of the fraud, but the government does not, the relator could wait up to ten years to bring suit. Theoretically but not likely, the Chief Justice pointed out, as relators have other incentives to bring suit promptly (for example, by not losing the first-to-file bar's race to the courthouse or implicating the public disclosure bar or having the government sue first or having the relator's share reduced by being dilatory in filing).

Going by the questioning, only Justice Alito seemed particularly skeptical of the relator's and the government's position, openly wondering why it would matter what the government knew if the government ultimately declined to bring suit or intervene. Pinning a rule on when a relator can bring suit based on the government's knowledge made little sense. There too was debate on whether a relator may count as an "official of the United States charged with responsibility to act in the circumstances" once he becomes essentially an assignee of the government's FCA claim in a non-intervened case, but hesitance to find a relator to be an "official" rather than a "representative" or "agent" of the government.

This brew is simply too murky to allow us to read its leaves, so no fortunes to be told here. However, those who thought this would be a slam-dunk reversal appear sorely mistaken. We of course will be watching for the opinion and will report promptly when it comes down.

© Arnold & Porter Kaye Scholer LLP 2019. All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.