Amicus Curiae Brief — Cochise Consultancy, Inc., et al., Petitioners v. United States, ex rel. Billy Joe Hunt
Supreme Court briefFeb 8, 2019
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No. 18-315
In the Supreme Court of the United States
COCHISE CONSULTANCY, INC., ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA EX REL. BILLY JOE HUNT
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
MATTHEW GUARNIERI
Assistant to the Solicitor
General
CHARLES W. SCARBOROUGH
MARTIN V. TOTARO
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
The False Claims Act, 31 U.S.C. 3729 et seq., contains a six-year statute of limitations and a tolling
provision for any “civil action under section 3730.”
31 U.S.C. 3731(b). The tolling provision permits a suit
to be brought within three years after “the date when
facts material to the right of action are known or reasonably should have been known by the official of the
United States charged with responsibility to act in the
circumstances, but in no event more than 10 years after
the date on which the violation is committed.” 31 U.S.C.
3731(b)(2). The questions presented are as follows:
1. Whether the tolling provision in 31 U.S.C.
3731(b)(2) applies to a civil action brought by a private
relator under 31 U.S.C. 3730(b) when the United States
elects not to intervene in the action.
2. Whether, for purposes of 31 U.S.C. 3731(b)(2), a
private relator is “the official of the United States
charged with responsibility to act under the circumstances” when the United States elects not to intervene.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 8
Argument:
I. Section 3731(b)(2) applies to a relator’s action
under Section 3730(b) even if the United States
declines to intervene in the action................................ 11
A. The text of Section 3731(b) does not
distinguish among FCA suits commenced by
the United States, qui tam suits in which the
United States intervenes, and qui tam suits in
which the United States declines to intervene ..... 12
1. A civil action brought by a relator for a
violation of Section 3729 is “[a] civil action
under section 3730” .......................................... 13
2. This Court’s decision in Graham County
confirms that Section 3731(b)(2) applies to
this case ............................................................. 14
3. Petitioners’ textual arguments lack merit ..... 17
B. The structure, purpose, and history of the
statute confirm that Section 3731(b)(2) applies
even when the United States declines to
intervene .................................................................. 20
1. Where the FCA distinguishes between
relators and the government, it does so
clearly................................................................. 21
2. Petitioners’ reading would frustrate the
purpose of the tolling provision ....................... 23
3. The legislative history of the statute
supports giving effect to its plain meaning .... 24
C. Petitioners’ policy concerns are unfounded.......... 25
(III)
IV
Table of Contents—Continued:
Page
II. Under Section 3731(b)(2), a private relator is
never “the official of the United States” whose
knowledge of fraud triggers the commencement
of the three-year tolling period .................................... 27
Conclusion ................................................................................... 32
TABLE OF AUTHORITIES
Cases:
American Pipe & Constr. Co. v. Utah, 414 U.S. 538
(1974) .................................................................................... 26
Bailey v. Glover, 88 U.S. (21 Wall.) 342 (1875) ................... 23
Bankamerica Corp. v. United States, 462 U.S. 122
(1983) .................................................................................... 17
Bierman v. International Bus. Machs. Corp.,
547 Fed. Appx. 851 (9th Cir. 2013) .................................... 30
Clark v. Martinez, 543 U.S. 371 (2005) ............................... 17
Graham Cnty. Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 545 U.S. 409 (2005) .....passim
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .................... 22
John Beaudette, Inc. v. Sentry Ins. A Mut. Co.,
94 F. Supp. 2d 77 (D. Mass. 1999) ..................................... 30
Merck & Co. v. Reynolds, 559 U.S. 633 (2010).................... 23
Murphy v. Jefferson Pilot Commc’ns Co.,
657 F. Supp. 2d 683 (D.S.C. 2008) ..................................... 30
Ratzlaf v. United States, 510 U.S. 135 (1994) ............... 17, 24
Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) ....... 17
Ross v. Blake, 136 S. Ct. 1850 (2016) ................................... 12
Rumsfeld v. Padilla, 542 U.S. 426 (2004)............................ 29
Sherwood v. Sutton, 21 F. Cas. 1303
(C.C.D.N.H. 1828) (No. 12,782) ......................................... 24
United States v. Bornstein, 423 U.S. 303 (1976) .................. 3
V
Cases—Continued:
Page
United States ex rel. Eisenstein v. City of New York,
556 U.S. 928 (2009).............................................................. 30
United States ex rel. Hyatt v. Northrop Corp.,
91 F.3d 1211 (9th Cir. 1996) ......................................... 14, 25
United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951) .................................................................................... 26
Universal Health Servs., Inc. v. United States
ex rel. Escobar, 136 S. Ct. 1989 (2016) .......................... 3, 26
Vermont Agency of Natural Res. v. United States
ex rel. Stevens, 529 U.S. 765 (2000) ............................. 21, 30
Constitution, statutes, regulations, and rule:
U.S. Const. Art. II, § 2, Cl. 2 ................................................ 28
Act of Mar. 2, 1863, ch. 67, § 7, 12 Stat. 698 .......................... 3
Dodd-Frank Wall Street Reform and Consumer
Protection Act, Pub. L. No. 111-203, Tit. X,
§ 1079A(c)(2), 124 Stat. 2079 .............................................. 15
False Claims Act, 31 U.S.C. 3729 et seq. ............................... 1
31 U.S.C. 3729 ...............................................2, 9, 16, 20, 21
31 U.S.C. 3729(a)(1) ....................................................... 1, 2
31 U.S.C. 3729(a)(2)(A) ................................................... 29
31 U.S.C. 3729(a)(2)(B) ................................................... 29
31 U.S.C. 3730 (2000) ...................................................... 15
31 U.S.C. 3730 ...................................................... 14, 15, 18
31 U.S.C. 3730(a) ................................................... 2, 27, 28
31 U.S.C. 3730(b) .................................................... passim
31 U.S.C. 3730(b)(1) ........................................ 2, 21, 28, 31
31 U.S.C. 3730(b)(2) .............................................. 2, 21, 24
31 U.S.C. 3730(b)(4) .................................................. 14, 21
31 U.S.C. 3730(b)(4)(A) ..................................................... 2
31 U.S.C. 3730(b)(4)(B) .......................................... 2,14, 21
31 U.S.C. 3730(b)(5) .................................................... 2, 25
VI
Statutes, regulations, and rule—Continued:
Page
31 U.S.C. 3730(c)(1) ......................................................... 21
31 U.S.C. 3730(c)(2)(A) ................................................... 31
31 U.S.C. 3730(c)(2)(A)-(B) ............................................. 22
31 U.S.C. 3730(c)(3) ....................................2, 14, 21, 22, 31
31 U.S.C. 3730(d)(1) .............................................. 2, 26, 31
31 U.S.C. 3730(d)(2) .............................................. 3, 26, 31
31 U.S.C. 3730(e)(2)(A) ................................................... 22
31 U.S.C. 3730(e)(3) ......................................................... 25
31 U.S.C. 3730(e)(4) ......................................................... 25
31 U.S.C. 3730(e)(4)(A) ................................................... 22
31 U.S.C. 3730(h) (2000).................................................. 15
31 U.S.C. 3730(h) ............................................... 7, 9, 15, 16
31 U.S.C. 3730(h)(3) ........................................................ 15
31 U.S.C. 3731(b) (1982).................................................... 3
31 U.S.C. 3731(b) .................................................... passim
31 U.S.C. 3731(b)(1) ............................................... passim
31 U.S.C. 3731(b)(2) ............................................... passim
31 U.S.C. 3731(c) (2000) .................................................. 18
31 U.S.C. 3731(d) ....................................................... 17, 18
False Claims Amendments Act of 1986,
Pub. L. No. 99-562, § 5, 100 Stat. 3158 ......................... 3, 23
28 U.S.C. 510 .......................................................................... 28
28 U.S.C. 2415 ........................................................................ 19
28 U.S.C. 2416 ........................................................................ 19
28 U.S.C. 2416(c) .............................................................. 18, 19
28 C.F.R.:
Pt. 0:
Section 0.45(d) ............................................................ 28
Subpt. Y, App. ............................................................ 28
VII
Regulations and rule—Continued:
Page
Pt. 16:
Sections 16.21-16.29 ................................................... 26
Fed. R. Civ. P. 17(a) .............................................................. 30
Miscellaneous:
132 Cong. Rec. (1986):
p. 20,536 ............................................................................ 23
p. 28,576 ............................................................................ 27
Civil Division, U.S. Dep’t of Justice, Fraud Statistics
– Overview (2018), https://www.justice.gov/civil/
page/ file/1080696/download?utm_medium=email&
utm_source=govdelivery ................................................... 24
False Claims Act Amendments: Hearings before
the Subcomm. on Administrative Law and
Governmental Relations of the House Comm.
on the Judiciary, 99th Cong., 2d Sess. (1986) ................... 3
False Claims Reform Act: Hearing on S. 1562 before
the Subcomm. on Administrative Practice and
Procedure of the Senate Comm. on the Judiciary,
99th Cong., 1st Sess. (1985) ................................................. 3
H.R. Rep. No. 660, 99th Cong., 2d Sess. (1986) ...... 23, 24, 27
S. 1562, § 3(1), 99th Cong., 2d Sess. (as reported from
the S. Comm. on the Judiciary, July 28, 1986) ................. 27
S. Rep. No. 345, 99th Cong., 2d Sess.
(1986) ...........................................................1, 8, 23, 24, 25, 27
In the Supreme Court of the United States
No. 18-315
COCHISE CONSULTANCY, INC., ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA EX REL. BILLY JOE HUNT
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case presents important questions concerning
the time limits for bringing a civil action under the
False Claims Act (FCA or Act), 31 U.S.C. 3729 et seq.
The FCA is the primary tool by which the federal government combats fraud in federal contracts and programs. The United States has a substantial interest in
the proper interpretation of the Act’s time limits for
bringing suit.
STATEMENT
1. The FCA “has been used more than any other [statute] in defending the Federal treasury against unscrupulous contractors and grantees.” S. Rep. No. 345, 99th
Cong., 2d Sess. 4 (1986) (1986 Senate Report). The Act
imposes civil liability for a variety of deceptive practices
involving government funds and property. See 31 U.S.C.
(1)
2
3729(a)(1). A person who violates the Act is liable to the
United States for civil penalties plus three times the
amount of the government’s damages. Ibid.
a. A civil action alleging a violation of Section 3729
may be commenced in either of two ways. First, the
government may bring a civil action against the alleged
violator. 31 U.S.C. 3730(a). Second, a private person
(known as a relator) may bring a qui tam civil action “for
the person and for the United States Government.”
31 U.S.C. 3730(b)(1). In that event, “[t]he action shall
be brought in the name of the Government.” Ibid.
When a relator brings a civil action under Section
3730(b), the complaint is filed in camera and remains
under seal for at least 60 days. 31 U.S.C. 3730(b)(2). In
addition to filing the complaint under seal, the relator
must serve on the government a copy of the complaint
and any supporting evidence. Ibid. Within 60 days after receiving the complaint and supporting evidence,
the government may “intervene and proceed with the
action,” ibid., “in which case the action shall be conducted by the Government,” 31 U.S.C. 3730(b)(4)(A).
Alternatively, the government may “notify the court
that it declines to take over the action.” 31 U.S.C.
3730(b)(4)(B). If the government declines to intervene,
the relator has the right to conduct the action. See
31 U.S.C. 3730(b)(4)(B), (b)(5), and (c)(3). But the government is entitled to be served with copies of all pleadings upon request and may intervene at any time with
good cause. 31 U.S.C. 3730(c)(3).
If the government intervenes in a civil action
brought by a relator under Section 3730(b), the relator
is generally entitled to between 15% and 25% of any
monetary recovery. 31 U.S.C. 3730(d)(1). If the gov-
3
ernment declines to intervene and the relator successfully prosecutes the action, the relator receives between
25% and 30% of the recovery. 31 U.S.C. 3730(d)(2).
b. The FCA was enacted in 1863 to “stop[] the massive frauds perpetrated by large contractors during the
Civil War.” Universal Health Servs., Inc. v. United
States ex rel. Escobar, 136 S. Ct. 1989, 1996 (2016)
(quoting United States v. Bornstein, 423 U.S. 303, 309
(1976)). The Act originally contained a six-year statute
of limitations. Act of Mar. 2, 1863, ch. 67, § 7, 12 Stat.
698; see 31 U.S.C. 3731(b) (1982).
In the course of making significant amendments to
the Act in 1986, Congress heard evidence that the sixyear limitations period sometimes allowed wrongdoers
to escape liability because their frauds remained concealed or otherwise undetected during the limitations
period. See False Claims Act Amendments: Hearings
before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 99th Cong., 2d Sess. 159 (1986) (testimony of
Richard K. Willard, Assistant Attorney General, proposing a “limited tolling period where the fraudulent
conduct has been concealed, as it frequently is, from the
government”); False Claims Reform Act: Hearing on
S. 1562 before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 39 (1985) (prepared statement
of Jay B. Stephens, Deputy Associate Attorney General) (similar). To address that concern, Congress
added a provision that permitted suit to be filed within
three years after the government discovers the fraud,
subject to a ten-year outer limit. False Claims Amendments Act of 1986, Pub. L. No. 99-562, § 5, 100 Stat. 3158.
4
In its current form, the Act provides:
(b) A civil action under section 3730 may not be
brought—
(1) more than 6 years after the date on which
the violation of section 3729 is committed, or
(2) more than 3 years after the date when
facts material to the right of action are known or
reasonably should have been known by the official
of the United States charged with responsibility
to act in the circumstances, but in no event more
than 10 years after the date on which the violation
is committed,
whichever occurs last.
31 U.S.C. 3731(b).
2. On November 27, 2013, respondent filed his complaint in the present civil action. J.A. 6a, 47a. The complaint alleges that petitioners—two defense contractors—
defrauded the United States by submitting false claims
for payment under a subcontract to provide security services in Iraq “from some time prior to January 2006 until
early 2007.” J.A. 43a; see J.A. 19a. In particular, the
complaint alleges that the President of Cochise Consultancy had a close personal relationship with a contracting officer in the Army Corps of Engineers, Wayne
Shaw, who steered a subcontract to Cochise in exchange
for improper gifts and gratuities, and without disclosing
the conflict of interest. J.A. 20a-21a.
The government had awarded the Parsons Corporation a $60 million contract to clean up “excess munitions
left by retreating or defeated enemy forces.” J.A. 33a.
Parsons, in turn, solicited bids for a subcontractor to
provide security services for the project. J.A. 35a. After a competitive bidding process, a team of Parsons
5
personnel decided to award the subcontract to a third
party. J.A. 36a-37a. Shaw intervened, however, and directed Parsons to award the subcontract to Cochise.
J.A. 37a-40a. Respondent worked for Parsons and alleges that he personally observed Shaw’s interference.
J.A. 24a-25a, 37a-39a.
The complaint further alleges that, as a result of the
fraud, the government paid Cochise “in excess of $1 million more per month between February 2006 and September 2006 than it” would have paid if Shaw had not
overridden the competitive award. J.A. 40a. The government was also forced to pay an additional $2.9 million for Cochise to acquire armored vehicles necessary
to perform the contract. Ibid. When Shaw left Iraq,
Parsons awarded the subcontract to the third party it
had previously selected. Ibid.
On November 30, 2010, respondent was interviewed
by federal agents about his role in an unrelated contracting fraud in Iraq, for which he ultimately served
ten months in prison. Pet. App. 5a. Respondent claims
to have told federal agents during the interview about
the “fraudulent scheme involving the [Cochise] subcontract for security services.” Ibid.
In January 2015, the United States declined to intervene in the action, and respondent’s complaint was unsealed. J.A. 7a; Pet. App. 6a.
3. In October 2015, petitioners moved to dismiss the
complaint as untimely. J.A. 11a; Pet. App. 34a. The
parties agreed that the basic six-year limitations period
in 31 U.S.C. 3731(b)(1) had elapsed before respondent
filed suit on November 27, 2013, given the allegation in
the complaint that the fraud had ended in “early 2007.”
Pet. App. 33a-34a; see J.A. 34a, 43a. Respondent contended, however, that his action was timely under
6
Section 3731(b)(2) because he had filed his complaint
within three years after his November 30, 2010, interview with federal agents (and within ten years after the
violation). Pet. App. 34a, 37a.
The district court dismissed the complaint. Pet.
App. 32a-40a. The court noted that other courts had
adopted “three different interpretations” of Section
3731(b). Id. at 35a. Under the first interpretation, Section 3731(b)(2) “simply does not apply” in a qui tam action in which the United States elects not to intervene,
ibid., so that any such suit must be filed within six years
after the violation. Under the second interpretation,
Section 3731(b)(2) applies in non-intervened actions,
“but the limitations period runs from the date the relator/plaintiff knew or reasonably should have known of
the facts material to the right of action.” Ibid. Under
the third interpretation, Section 3731(b)(2) applies in
non-intervened actions, “and the tolling clock does not
begin to run until the government knew or should [have
known] about the right of action.” Ibid. The district
court rejected the third interpretation and declined to
choose between the first two approaches because it
found that respondent’s complaint would be untimely
under either of them. Id. at 37a-39a.
4. The court of appeals reversed and remanded. Pet.
App. 1a-31a. The court held that Section 3731(b)(2)’s
three-year tolling rule applies to qui tam actions in which
the United States declines to intervene, id. at 14a, and
that the proper application of Section 3731(b)(2) in those
circumstances turns on the government’s knowledge of
the fraud, not the relator’s, id. at 30a.
The court of appeals began “with the words of the
statutory provision.” Pet. App. 13a (citation omitted).
The court noted that both paragraphs (1) and (2) in
7
Section 3731(b) apply to a “civil action under section
3730.” Id. at 14a (quoting 31 U.S.C. 3731(b)). The court
explained that the plain meaning of that phrase
encompasses an FCA suit like this one, because “[a]
non-intervened case[ ] is a type of civil action under
§ 3730,” and “nothing in § 3731(b)(2) says that its limitations period is unavailable to relators when the government declines to intervene.” Ibid. The court of appeals recognized that in Graham County Soil & Water
Conservation District v. United States ex rel. Wilson,
545 U.S. 409 (2005), this Court had construed the phrase
“[a] civil action under section 3730,” 31 U.S.C. 3731(b),
not to encompass certain claims for retaliation under
31 U.S.C. 3730(h). See Pet. App. 15a-17a. But the court
explained that Graham County did not directly address
the application of Section 3731(b)(2) to non-intervened
qui tam actions, id. at 17a, and that Graham County’s
construction of the phrase “civil action under section
3730” to mean “any civil action that has [as] an element
a violation of § 3729” would include non-intervened qui
tam suits, id. at 17a n.8.
The court of appeals rejected petitioners’ argument
that applying Section 3731(b)(2) in non-intervened qui
tam suits would be “absurd.” Pet. App. 18a. In the
“unique context” of a qui tam action under Section
3730(b)—where a relator sues on behalf of the United
States, the government “is entitled to the bulk of the
recovery,” and the government retains substantial control over the litigation—the court could not “say that it
would be absurd for Congress to peg the start of the
limitations period to the knowledge of a government official even when the United States declines to intervene.”
Id. at 19a-20a. The court also rejected petitioners’ argument that applying Section 3731(b)(2) in non-intervened
8
qui tam actions would render Section 3731(b)(1) superfluous, noting that relators would still have ample incentive to bring suit within the six-year limitations period.
See id. at 23a-24a. Finally, the court reviewed the legislative history and found it silent on the key point and
generally supportive of reading Section 3731(b)(2) to
“encourage more private enforcement suits.” Id. at 25a
(quoting 1986 Senate Report 23-24); see id. at 25a-29a.
The court of appeals also observed that “Section
3731(b)(2) is clear that the time period begins to run
when ‘the official of the United States charged with responsibility to act in the circumstances’ knew or reasonably should have known the material facts about the
fraud.” Pet. App. 30a (quoting 31 U.S.C. 3731(b)(2)).
The court held that, because “the text unambiguously
identifies a particular official of the United States as the
relevant person whose knowledge causes the limitations
period to begin to run,” it is the government’s knowledge
rather than the relator’s that triggers Section 3731(b)(2)’s
three-year tolling provision. Ibid.
Finally, the court of appeals held that dismissal of the
complaint was unwarranted. Pet. App. 30a-31a. The
court held that, although “facts developed in discovery
[may] show that the relevant government official knew
or should have known the material facts about the fraud
at an earlier date,” the allegations of the complaint did
not show that the suit was untimely. Id. at 31a & n.12.
SUMMARY OF ARGUMENT
1. a. The three-year tolling rule in 31 U.S.C.
3731(b)(2) applies to a relator’s qui tam action under
Section 3730(b) even if the United States declines to intervene in the suit. Petitioner’s own timeliness argument depends on the premise that, for purposes of the
basic six-year statute of limitations in Section 3731(b)(1),
9
respondent’s qui tam suit is “[a] civil action under section 3730” within the meaning of the introductory clause
of Section 3731(b), even though the United States declined to intervene. 31 U.S.C. 3731(b). If that proposition is accepted, the text of Section 3731(b) makes clear
that a non-intervened qui tam action is subject to paragraph (2)’s three-year tolling rule as well.
Although petitioners rely in part on Graham County
Soil & Water Conservation District v. United States ex
rel. Wilson, 545 U.S. 409 (2005), that decision actually
supports the ruling of the court below. In Graham
County, this Court considered whether a relator’s suit
under 31 U.S.C. 3730(h) alleging unlawful retaliation
was subject to the six-year limitations period in Section
3731(b). The Court held that Section 3731(b) did not apply
to a Section 3730(h) suit, but its reasons for reaching that
conclusion are inapposite here. The Court in Graham
County construed the phrase “civil action under section
3730” in Section 3731(b)—the same phrase at issue here—
to mean “those civil actions under § 3730 that have as an
element a ‘violation of section 3729,’ that is, §§ 3730(a)
and (b) actions.” 545 U.S. at 421-422. A non-intervened
qui tam suit arises under Section 3730(b) and has as an
element a violation of Section 3729.
Petitioners contend (Br. 20 n.3) that a non-intervened
qui tam suit is subject to the basic six-year limitations period in Section 3731(b)(1), but not to the three-year tolling
rule in Section 3731(b)(2). Within Section 3731(b),
however, the term “civil action under section 3730” appears only once, in the provision’s introductory clause.
31 U.S.C. 3731(b). Paragraphs (1) and (2) establish distinct (though complementary) timing requirements for
such civil actions. A non-intervened suit cannot be a
10
“civil action under section 3730” for purposes of paragraph (1) but not (2).
b. The FCA’s structure, purpose, and history confirm that Section 3731(b)(2) applies in qui tam actions
brought under Section 3730(b) even when the United
States declines to intervene. Under the FCA, a relator
generally can file suit in the same circumstances and
under the same terms as the United States, subject to
specific and clearly delineated exceptions. Where the
Act subjects relator suits to requirements or limitations
that do not apply to government actions, it does so expressly. Section 3731(b) does not draw any such distinction, but instead imposes the same timing requirements
on all “civil action[s] under section 3730.” 31 U.S.C.
3731(b). That reading also accords with the purpose of
the tolling provision. Congress recognized that fraud is
often difficult to detect, and it enacted the tolling provision to prevent wrongdoers from benefiting when the
government does not discover their frauds before the
basic six-year limitations period expires. Nothing in
the legislative record suggests that Congress intended
to shield wrongdoers from the tolling rule when the
United States relies on a relator to prosecute an action.
c. Petitioners’ policy concerns are unfounded. Even
if the tolling rule in Section 3731(b)(2) applies to nonintervened qui tam suits, private relators will have substantial incentives to report fraud to the government and
to file suit expeditiously. Relators who strategically delay filing suit risk being barred from doing so by an earlier private plaintiff, a government action, or a public disclosure of the fraud. Petitioners’ concern that the application of Section 3731(b)(2) in non-intervened suits
would require burdensome discovery is overstated and
does not justify disregarding the plain text of the statute.
11
2. Under Section 3731(b)(2), the “official of the
United States charged with responsibility to act in the
circumstances”—the person whose knowledge is relevant for tolling purposes—is always a government official, whether or not the United States elects to intervene.
31 U.S.C. 3731(b)(2). A private relator is not an “official
of the United States” in any sense of that term. The relator does not hold an office, receive an appointment or
commission, or otherwise exercise any delegated sovereign authority. Nor is a private relator a person “charged
with responsibility to act in the circumstances” where evidence of FCA violations comes to light.
Petitioners’ contrary view cannot be reconciled with
the statutory text, and it would produce bizarre results.
Under that approach, a relator’s qui tam suit could be
timely even though a government suit filed on the same
day and alleging the same fraudulent acts would not be.
To allow a qui tam suit in that scenario is contrary to
the basic logic of the FCA’s qui tam mechanism, under
which a relator acts as a partial assignee of the government to assert the same claims that the government
might have advanced.
ARGUMENT
I. SECTION 3731(b)(2) APPLIES TO A RELATOR’S ACTION
UNDER SECTION 3730(b) EVEN IF THE UNITED
STATES DECLINES TO INTERVENE IN THE ACTION
The timing rules in 31 U.S.C. 3731(b), including the
three-year tolling rule in Section 3731(b)(2), apply to
“[a] civil action under section 3730.” 31 U.S.C. 3731(b).
In Graham County Soil & Water Conservation District
v. United States ex rel. Wilson, 545 U.S. 409 (2005), this
Court construed that phrase to mean “those civil actions
under § 3730 that have as an element a ‘violation of section 3729,’ that is, §§ 3730(a) and (b) actions,” id. at 421-
12
422. Relator suits like this one arise under Section
3730(b), which is entitled “Actions By Private Persons”
and authorizes private plaintiffs to bring suit “for a violation of section 3729.” 31 U.S.C. 3730(b). A qui tam
suit therefore falls squarely within the plain language
of Section 3731(b), and within this Court’s construction
of that language in Graham County, whether or not the
United States intervenes in the action.
In petitioners’ view (Br. 20 n.3), a qui tam suit in
which the United States does not intervene is a “civil
action under section 3730” for purposes of Section
3731(b)(1)’s basic six-year limitations period, but not for
purposes of Section 3731(b)(2)’s tolling rule. But the
term “civil action under section 3730” appears only
once, in Section 3731(b)’s introductory clause. That
term cannot plausibly be thought to have two different
meanings depending on which aspect of Section
3731(b)’s timing rules is at issue. Petitioners’ reading is
also inconsistent with the structure, purpose, and history of the statute. Under the correct interpretation of
Section 3731(b), a relator’s suit is timely if, but only if,
the government could have brought the same suit at the
same time.
A. The Text Of Section 3731(b) Does Not Distinguish
Among FCA Suits Commenced By The United States,
Qui Tam Suits In Which The United States Intervenes,
And Qui Tam Suits In Which The United States Declines
To Intervene
“Statutory interpretation * * * begins with the
text,” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016), and
the text of Section 3731(b) fully resolves this case. A qui
tam suit brought under Section 3730(b) is a “civil action
under section 3730,” 31 U.S.C. 3731(b), and is therefore
subject to both the basic six-year statute of limitations
13
in Section 3731(b)(1) and the three-year tolling rule in
Section 3731(b)(2).
1. A civil action brought by a relator for a violation of
Section 3729 is “[a] civil action under section 3730”
Section 3731(b) specifies that “[a] civil action under
section 3730 may not be brought” if the action falls outside of the periods described in paragraphs (1) or (2),
“whichever occurs last.” 31 U.S.C. 3731(b). Paragraph
(1) is a conventional six-year statute of limitations, while
paragraph (2) is the tolling provision at issue here:
(b) A civil action under section 3730 may not be
brought—
(1) more than 6 years after the date on which
the violation of section 3729 is committed, or
(2) more than 3 years after the date when facts
material to the right of action are known or reasonably should have been known by the official of
the United States charged with responsibility to
act in the circumstances, but in no event more
than 10 years after the date on which the violation
is committed,
whichever occurs last.
Ibid. The statute is thus drafted so that both paragraphs
(1) and (2) apply to “[a] civil action under section 3730.”
Ibid.
As the court of appeals recognized, an action by a relator in which the United States declines to intervene is
a “civil action under section 3730.” Pet. App. 14a. In
particular, Section 3730(b) authorizes a relator to
“bring a civil action for a violation of section 3729 for the
[relator] and for the United States * * * in the name of
the Government.” 31 U.S.C. 3730(b). The government
14
may intervene in any such action, but it is not required
to do so. 31 U.S.C. 3730(b)(4). When the government
declines to intervene, the relator “bringing the action
shall have the right to conduct the action.” 31 U.S.C.
3730(b)(4)(B); see 31 U.S.C. 3730(c)(3) (similar). But
whether or not the government intervenes, the civil action remains at all times an action under Section 3730,
and it is therefore subject to both paragraphs (1) and (2)
in Section 3731(b).
Petitioners argue (Br. 18) that “Section 3731(b)(2)
does not expressly mention relators.” But Section
3731(b)(1) likewise does not expressly mention relators.
Instead, the operative language that makes both paragraphs (1) and (2) applicable to qui tam suits is the introductory clause, which specifies that the timing rules
apply to “[a] civil action under section 3730.” 31 U.S.C.
3731(b). Petitioners also argue that paragraph (2)’s reference to “the official of the United States charged with
responsibility to act in the circumstances” indicates that
Congress did not intend for paragraph (2) to apply when
the government elects not to intervene. Pet. Br. 18 (citation omitted). But that clause merely specifies whose
knowledge counts in applying the discovery rule in paragraph (2); it does not modify or limit the actions to
which paragraph (2) applies. “Indeed, there is nothing
in the entire statute of limitations subsection which differentiates between private and government plaintiffs
at all.” United States ex rel. Hyatt v. Northrop Corp.,
91 F.3d 1211, 1214 (9th Cir. 1996).
2. This Court’s decision in Graham County confirms
that Section 3731(b)(2) applies to this case
The question presented in Graham County was
whether the six-year limitations period in Section
3731(b)(1) “governs * * * actions for retaliation” under
15
Section 3730(h). 545 U.S. at 411. When Graham County
was decided, Section 3730(h) created a cause of action
for any “employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment” for taking lawful steps to further or assist
“an action filed or to be filed” under Section 3730.
31 U.S.C. 3730(h) (2000). Section 3730(h) did not specify
a time limit for bringing such an action. See ibid.1
This Court held that an action under Section 3730(h)
alleging unlawful retaliation was not a “civil action under section 3730” for purposes of Section 3731(b), and
that the time for filing such a suit therefore was governed not by the FCA’s six-year limitations period, but
by federal common law, which borrows an analogous
state-law period. Graham County, 545 U.S. at 422. The
Court concluded that, although an action under Section
3730(h) is literally a “civil action under section 3730,”
the statutory “context” indicated that Section 3731(b)
applies “only to actions arising under §§ 3730(a) and (b),
not to § 3730(h) retaliation actions.” Id. at 415. The
Court therefore held that the phrase “ ‘civil action under
section 3730’ means only those civil actions under § 3730
that have as an element a ‘violation of section 3729,’ that
is, §§ 3730(a) and (b) actions.” Id. at 421-422.
The Court identified two primary bases for that conclusion. First, while the six-year limitations period begins to run when “the violation of section 3729 is committed,” 31 U.S.C. 3731(b)(1), Section 3730(h) protects
Congress later amended Section 3730(h) to add a three-year
statute of limitations. See 31 U.S.C. 3730(h)(3); Dodd-Frank Wall
Street Reform and Consumer Protection Act, Pub. L. No. 111-203,
Tit. X, § 1079A(c)(2), 124 Stat. 2079.
1
16
employees from retaliation for assisting in an investigation even when no violation of Section 3729 has occurred. See Graham County, 545 U.S. at 416. Second,
an employee’s cause of action under Section 3730(h) accrues only when the retaliation occurs, which may be
more than six years after any violation of Section 3729.
See id. at 418. Applying Section 3731(b)(1) to Section
3730(h) suits therefore would violate “the default rule
that Congress generally drafts statutes of limitations to
begin when the cause of action accrues,” ibid., and could
cause some retaliation claims to become time-barred
before they even accrue, id. at 421.
Contrary to petitioners’ contention (Br. 17), Graham
County’s “interpretive approach” does not support
their reading of Section 3731(b)(2). Although the Court
interpreted the phrase “[a] civil action under section
3730” in Section 3731(b) to “refer only to a subset of
§ 3730 actions,” Graham County, 545 U.S. at 418, respondent’s suit is squarely within the subset the Court
identified, i.e., “civil actions under § 3730 that have as
an element a ‘violation of section 3729,’ ” id. at 421-422.
Civil actions brought by relators under Section 3730(b)
have as an element a violation of Section 3729, whether
or not the government intervenes. See 31 U.S.C.
3730(b) (authorizing a private person to “bring a civil
action for a violation of section 3729”). And, for that
reason, treating a non-intervened qui tam suit as a “civil
action under section 3730” does not create the practical
anomalies that the Court in Graham County identified.
Finally, the Court in Graham County held that a retaliation claim under Section 3730(h) is not (for limitations purposes) a “civil action under section 3730” at all,
and therefore is not subject either to Section 3731(b)(1)’s
basic six-year limitations period or to Section 3731(b)(2)’s
17
tolling rule. Petitioners, by contrast, would treat respondent’s qui tam suit as a “civil action under section
3730” for purposes of the six-year deadline, but not for
tolling purposes. Nothing in Graham County supports
that approach.
3. Petitioners’ textual arguments lack merit
a. In petitioners’ view (Br. 39), a qui tam action in
which the United States declines to intervene is subject
to the six-year limitations period in Section 3731(b)(1),
but not to the three-year tolling rule in Section
3731(b)(2). Yet both those provisions apply to “[a] civil
action under section 3730.” 31 U.S.C. 3731(b). A nonintervened suit cannot simultaneously be a “civil action
under section 3730” for purposes of Section 3731(b)(1)
but not (b)(2), since the “same * * * provision” of a statute cannot “bear[ ] two different meanings” at the same
time. Clark v. Martinez, 543 U.S. 371, 380, 383 (2005);
see Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 329
(2000) (“[W]e refuse to adopt a construction that would
attribute different meanings to the same phrase in the
same sentence, depending on which object it is modifying.”) (citing Bankamerica Corp. v. United States,
462 U.S. 122, 129 (1983)); Ratzlaf v. United States,
510 U.S. 135, 143 (1994) (“A term appearing in several
places in a statutory text is generally read the same way
each time it appears. We have even stronger cause to
construe a single formulation * * * the same way each
time it is called into play.”) (citation omitted).
Petitioners’ reliance (Br. 19-20) on 31 U.S.C. 3731(d)
is thus misplaced. Section 3731(d) states: “In any action brought under section 3730, the United States shall
be required to prove all essential elements of the cause
of action, including damages, by a preponderance of the
evidence.” 31 U.S.C. 3731(d). The United States has
18
nothing to prove in a relator’s action under Section
3730(b) in which the government has declined to intervene. In Graham County, this Court accordingly recognized that the “context of this provision” (which at the
time was codified as Subsection (c), see Pet. Br. 19 n.2)
implies that the phrase “any action brought under section 3730” as used in Section 3731(d) “refer[s] only to a
subset of § 3730 actions”—specifically, to those actions
that are “brought by the United States” or in which “the
United States intervenes as a party.” 545 U.S. at 418.
That is not, however, the interpretation petitioners
urge here. If the phrase “[a] civil action under section
3730” in Section 3731(b)’s introductory clause referred
only to the subset of Section 3730 actions that are
brought by the United States or in which the United
States intervenes, see Graham County, 545 U.S. at 418,
then a non-intervened suit would be subject to neither
the tolling rule in Section 3731(b)(2) nor the basic sixyear limitations period in Section 3731(b)(1)—a result
petitioners expressly repudiate (Br. 20 n.3). Petitioners
suggest (ibid.) that the phrase “[a] civil action under
section 3730” is “used in Section 3731(b)(1).” But it is
not. That phrase appears only in Section 3731(b)’s introductory clause and describes the set of actions to
which both paragraphs (1) and (2) apply. Petitioners’
position thus would require giving the same phrase two
different meanings in a non-intervened action—a textual aberration that Graham County did not countenance and that Section 3731(d) does not support.
b. Petitioners argue (Br. 20-21) that Congress modeled Section 3731(b)(2) on 28 U.S.C. 2416(c); that Section
2416(c) “applies only to suits brought by the government”;
and that Section 3731(b)(2) should therefore be read the
19
same way. Section 2416(c) states that the applicable statute of limitations should be tolled when “facts material to
the right of action are not known and reasonably could not
be known by an official of the United States charged
with the responsibility to act in the circumstances.”
28 U.S.C. 2416(c). But Congress did not import into Section 3731(b)(2) the specific language that limits Section
2416(c) to suits by the government.
Section 2416(c) applies only “[f ]or the purpose of
computing the limitations periods established in section
2415,” 28 U.S.C. 2416, and Section 2415 in turn establishes the “[t]ime for commencing actions brought by
the United States,” 28 U.S.C. 2415. As the court below
explained, the “language in § 2416” that Congress incorporated into the FCA “is not what specifies that a limitations period in § 2415 applies only when the United
States is a party,” because “§ 2415 itself dictates that
the United States must be a party for its limitations period to apply.” Pet. App. 27a-28a. Section 3731(b)(2),
by contrast, establishes a tolling rule not for suits
“brought by the United States,” or suits “to which the
United States is a party,” but for “[a] civil action under
section 3730”—a term that encompasses respondent’s
non-intervened qui tam suit.
c. Petitioners argue (Br. 18-19, 22-26) that “default”
common-law rules would preclude a relator from benefiting from tolling the statute of limitations when the
United States is not a party to the action, and that Congress must speak clearly to displace those default rules.
But petitioners do not identify any common-law rule regarding tolling in qui tam actions, and none of the statutes or decisions they cite (Br. 23-25 & nn.4-5) addresses those circumstances. In any event, Congress
20
did speak clearly in establishing a tolling rule that encompasses non-intervened qui tam suits. The threeyear tolling rule applies to any “civil action under section 3730,” 31 U.S.C. 3731(b), and a non-intervened qui
tam suit is such a civil action.
d. Petitioners argue (Br. 27-28) that reading Section
3731(b)(2) to apply in non-intervened qui tam suits
would render Section 3731(b)(1) largely superfluous in
such cases, “effectively nullifying one of the two limitations provisions.” Petitioners’ argument rests on the
premise (Br. 28) that cases in which “the government
learn[s] about the fraud within the first three years of
its occurrence * * * are likely to be rare.” Petitioners
identify no sound basis for that assertion. And if the
government rarely learned of fraud within the first
three years after its occurrence, Section 3731(b)(1)’s
basic six-year statute of limitations would seldom control the timeliness inquiry in government-initiated suits
either. In any event, petitioners’ speculation provides
no basis for disregarding the clear statutory language.
B. The Structure, Purpose, And History Of The Statute
Confirm That Section 3731(b)(2) Applies Even When
The United States Declines To Intervene
The general thrust of the FCA’s qui tam provisions
is to allow private relators to sue in any circumstance
where the United States could bring its own enforcement action alleging a violation of Section 3729. When
Congress wishes to depart from that general approach,
by subjecting relator suits to restrictions that do not apply to government actions, it has expressed that intent
explicitly. The tolling provision in Section 3731(b)(2)
contains no such distinction. Moreover, Section 3731(b)(2)
was enacted to ensure that FCA violators do not benefit
21
when their fraud does not come to light during the limitations period, and petitioners’ reading would frustrate
that purpose. The legislative history confirms the purpose of the tolling provision, and it does not suggest that
Members of Congress intended to shield wrongdoers
from the tolling rule when the United States relies on a
relator to prosecute an action under Section 3730(b).
1. Where the FCA distinguishes between relators and
the government, it does so clearly
a. The structure of the FCA reinforces the conclusion that Section 3731(b)(2)’s tolling rule applies to nonintervened qui tam suits. The Act permits a relator
to bring an action “in the name of the Government,”
31 U.S.C. 3730(b)(1), for an injury “suffered by the
United States,” Vermont Agency of Natural Res. v.
United States ex rel. Stevens, 529 U.S. 765, 771 (2000).
If the government declines to intervene, the relator
“conduct[s] the action,” 31 U.S.C. 3730(b)(4)(B) and
(c)(3), and enforces the same substantive antifraud prohibitions that the United States enforces when it brings
suit or intervenes, see 31 U.S.C. 3729. The general
thrust of the Act’s qui tam provisions thus is to allow a
relator to commence and pursue an FCA suit in the
same circumstances where the government can pursue
its own enforcement action.
When Congress wishes to subject private relators to
restrictions that do not apply to the government, it has
enacted explicit statutory language to accomplish that
objective. A relator must file his complaint under seal
and cannot proceed with the action until the government has had an opportunity to consider intervening.
31 U.S.C. 3730(b)(2) and (4). If the government intervenes, the FCA carefully delineates the government’s
rights to control the action. 31 U.S.C. 3730(c)(1) and
22
(2)(A)-(B). The Act also specifies in detail the respective
rights of the relator and the government in cases where
the government does not intervene. E.g., 31 U.S.C.
3730(c)(3); see pp. 2-3, supra. Other FCA provisions
explicitly preclude qui tam suits, but not government
enforcement actions, under specified circumstances.
See, e.g., 31 U.S.C. 3730(e)(2)(A) and (4)(A).
Section 3731(b)(2), by contrast, does not distinguish
between relators and the government. To the contrary,
Section 3731(b)(2)’s tolling rule, like the basic six-year
statute of limitations contained in Section 3731(b)(1), applies to any “civil action under section 3730.” 31 U.S.C.
3731(b). In light of the express distinctions drawn elsewhere in the FCA, to construe Section 3731(b)(2) as
implicitly distinguishing between intervened and nonintervened suits would violate the presumption that
“Congress acts intentionally and purposefully” when it
includes “particular language in one section of a statute
but omits it in another.” INS v. Cardoza-Fonseca,
480 U.S. 421, 432 (1987) (citations omitted).
b. Reading Section 3731(b)(2) to apply to qui tam actions in which the United States does not intervene also
accords with the FCA’s structure by ensuring that, for
timing purposes, the relator is in the same shoes as the
government. If an action by the government would be
time-barred, so too would a similar action by a private
relator. If an action by the government would be timely,
so too would a similar action by a private relator.
Petitioners assert (Br. 26-27) that reading Section
3731(b)(2) to apply in non-intervened suits would give
relators “a longer period to sue than the government in
some scenarios where a relator and the government are
similarly situated.” Petitioners’ point is that, in cases
like this one, where a relator learns of an alleged fraud
23
before the government does, the court of appeals’ interpretation of Section 3731(b)(2) allows the relator to
sue more than three years after the relator himself
learned of the fraud. By that standard, however, Section 3731(b)(1)’s basic six-year limit would also give relators who learn of an alleged fraud before the government does “a longer period to sue than the government.”
Pet. Br. 26. In devising a statute of limitations for FCA
suits, Congress instead adopted a different form of parallel treatment, under which a qui tam suit is timely if,
but only if, a government suit filed on the same day and
alleging the same violation would be timely.
2. Petitioners’ reading would frustrate the purpose of
the tolling provision
Congress added Section 3731(b)(2) to the FCA in
1986, in the course of making significant amendments to
the Act. See False Claims Amendments Act of 1986, § 5,
100 Stat. 3158; Resp. Br. 8-9, 45-47; p. 3, supra. The
tolling provision was drafted to ensure that wrongdoers
do not escape liability simply because their frauds go
undetected by the government during the six-year limitations period. See 1986 Senate Report 15 (fraud “is,
by nature, deceptive” and may be obscured by the
“wrongdoer’s successful deception”); cf. H.R. Rep. No.
660, 99th Cong., 2d Sess. 25 (1986) (1986 House Report)
(“fraud is often difficult to detect”); 132 Cong. Rec.
20,536 (1986) (the “tolling provision [should] be liberally
construed because the conduct addressed here is so inherently deceptive and carefully concealed” (statement
of Sen. Grassley)). Like other discovery rules, Section
3731(b)(2) thus serves to prevent the limitations period
from becoming “the means by which [the defendant’s
fraud] is made successful and secure.” Merck & Co. v.
Reynolds, 559 U.S. 633, 644 (2010) (quoting Bailey v.
24
Glover, 88 U.S. (21 Wall.) 342, 349 (1875)); see Sherwood
v. Sutton, 21 F. Cas. 1303, 1307 (C.C.D.N.H. 1828) (No.
12,782) (Story, J.).
Petitioners’ reading would contravene the purpose of
the tolling provision by making it inapplicable to many
civil FCA suits. For a variety of reasons, the United
States intervenes in only about one-quarter of qui tam actions, which in turn significantly outnumber the actions
brought by the government. See Pet. App. 9a n.4, 12a n.6;
Civil Division, U.S. Dep’t of Justice, Fraud Statistics –
Overview 1-2 (2018), https://www.justice.gov/civil/page/
file/1080696/download?utm_medium=email&utm_source
=govdelivery. Petitioners’ reading would thus allow
many wrongdoers to escape liability by concealing their
frauds for six years and then asserting the statute of
limitations to bar a qui tam suit, even when the suit is
filed within three years after the government learns of
the fraud.
3. The legislative history of the statute supports giving
effect to its plain meaning
This Court need not “resort to legislative history to
cloud a statutory text that is clear.” Ratzlaf, 510 U.S. at
147-148. But, to the extent that the legislative history of
the 1986 FCA amendments sheds any light on the question presented here, it confirms that Section 3731(b)(2)’s
tolling rule was intended to prevent wrongdoers from
benefiting when their frauds are concealed. See pp. 3,
23, supra. The amendments also had an overall goal of
“encourag[ing] more private enforcement suits.” 1986
Senate Report 23-24. Applying Section 3731(b)(2) in nonintervened qui tam suits furthers both of those purposes.
Petitioners argue (Br. 37-39) that the legislative history reflects an exclusive concern with suits by the government itself. See, e.g., 1986 House Report 25 (“[T]he
25
statute of limitations should not preclude the Government from bringing a cause of action under this Act if
they were not aware of the fraud.”) (emphasis added).
But “the legislative history of the Act is replete with
many instances in which the word ‘government’ is used
when referring to suits brought in the name of the
United States by either the Attorney General or private
qui tam plaintiffs.” Hyatt, 91 F.3d at 1214. “For example, in discussing the scienter requirement, the committee reports refer to evidence which the ‘government’
must offer.” Id. at 1214-1215 (quoting 1986 Senate Report 6-7). “Given this history,” the absence of specific
references to relators in the legislative discussions of
tolling “is a weak rationale to support a decision contrary to the plain meaning of the statute.” Id. at 1215.
C. Petitioners’ Policy Concerns Are Unfounded
1. Petitioners speculate (Br. 28-31) that applying
Section 3731(b)(2) to non-intervened suits will create an
incentive for relators with knowledge of actionable
fraud to delay bringing suit while potential damages accumulate, in order to maximize their recoveries. That
concern is unrealistic, however, given the many FCA
provisions that “create strong incentives to ensure that
relators promptly report fraud.” Pet. App. 23a. If a
prospective relator delays filing suit, a second relator or
the government may sue first and preempt the relator’s
claim, see 31 U.S.C. 3730(b)(5) (first-to-file bar) and
(e)(3) (government-action bar); or the alleged fraud may
be “publicly disclosed” by another source in the interim,
likewise barring suit. 31 U.S.C. 3730(e)(4). Under the
correct interpretation of the Act, moreover, the threeyear tolling provision runs from the date “when facts
material to the right of action are known or reasonably
should have been known by” the government. 31 U.S.C.
26
3731(b)(2). A prospective relator who does not report a
fraud to the government and instead delays filing suit
runs the risk that the tolling period will expire sooner
than expected because the government has learned of
the fraud from another source.
A prospective relator also must carry his burden of
proof in order to obtain any recovery at all. A relator
who “wait[s] to sue ‘until evidence has been lost, memories have faded, and witnesses have disappeared,’ ” Pet.
Br. 30 (quoting American Pipe & Constr. Co. v. Utah,
414 U.S. 538, 554 (1974)), will have a more difficult time
establishing liability and recovering damages even if the
defendant remains solvent. And even where a relator
successfully prosecutes a qui tam action, a district court
may take into account any dilatory conduct in determining the relator’s share of the recovery. See 31 U.S.C.
3730(d)(1) and (2) (allowing adjustments to the relator’s
share in intervened and non-intervened cases).
2. Petitioners assert (Br. 32-33) that applying the tolling provision in non-intervened suits will entail intrusive
discovery into the government’s knowledge of the fraud—
i.e., into when, if ever, the responsible government official
knew or should have known the “facts material to the right
of action.” 31 U.S.C. 3731(b)(2). That concern does not justify disregarding the plain text of the statute. The government’s knowledge or lack thereof could be established by
affidavit, and the ability of private parties to obtain civil discovery from the government as a non-party is limited. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468-469
(1951); cf. 28 C.F.R. 16.21-16.29 (Department of Justice
Touhy regulations).2
The court of appeals also explained that private parties in nonintervened suits may seek to put the government’s knowledge at issue for other reasons. See Pet. App. 22a n.10; cf. Universal Health
2
27
II. UNDER SECTION 3731(b)(2), A PRIVATE RELATOR IS
NEVER “THE OFFICIAL OF THE UNITED STATES”
WHOSE KNOWLEDGE OF FRAUD TRIGGERS THE
COMMENCEMENT OF THE THREE-YEAR TOLLING
PERIOD
Section 3731(b)(2)’s tolling period begins to run when
“the official of the United States charged with responsibility to act in the circumstances” knew or reasonably
should have known about the fraud. 31 U.S.C. 3731(b)(2).
Whether or not the government intervenes in a particular
qui tam suit, that tolling period is triggered by the knowledge of the relevant government official, not by the knowledge of the private relator.
A. For purposes of “act[ing] in the circumstances,”
31 U.S.C. 3731(b)(2)—i.e., determining the appropriate
governmental response to evidence of FCA violations—
the relevant government official is an officer of the Department of Justice. 3 The FCA states that the Attorney
General “diligently shall investigate a violation of section 3729” and “may bring a civil action” under Section
Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2003
(2016) (“[I]f the Government pays a particular claim in full despite
its actual knowledge that certain requirements were violated, that
is very strong evidence that those requirements are not material.”).
3
Congress considered a version of the tolling provision that would
have made this explicit. See S. 1562, § 3(1), 99th Cong., 2d Sess. (as
reported from the S. Comm. on the Judiciary, July 28, 1986) (“when
facts material to the right of action are known * * * by the official
within the Department of Justice charged with responsibility to act”)
(emphasis added); cf. 1986 Senate Report 15 (noting that the proposed tolling provision would depend on “when the Government
learned of a violation”). In settling on the present language, see 1986
House Report 4-5; 132 Cong. Rec. 28,576, there is no indication that
Congress wished to expand the relevant universe of officials beyond
the Department of Justice—let alone to private relators.
28
3730(a). 31 U.S.C. 3730(a). The Attorney General has
delegated his authority to the Assistant Attorney General for the Civil Division, 28 C.F.R. 0.45(d); see
28 U.S.C. 510, who in turn has re-delegated that authority in some circumstances to other subordinate officials
within the Department. See 28 C.F.R. Pt. 0, Subpt. Y,
App. 85-86 (Civil Div. Directive No. 1-15). The Assistant Attorney General or his delegate therefore is “the
official of the United States charged with responsibility
to act” for purposes of Section 3731(b)(2).
B. A private relator, by contrast, is not an “official of
the United States.” A private relator is not appointed
in the manner of officers of the United States, see U.S.
Const. Art. II, § 2, Cl. 2, or even employed by the United
States. Because a relator does not hold an office, receive an appointment or commission, or otherwise exercise any delegated sovereign authority, he does not satisfy the definitions of “official” that petitioners cite (Br.
41 n.8). The government also does not “deputize[ ]”any
particular relator to bring any particular action. Pet.
Br. 41 (citation omitted). Consistent with those facts,
the FCA provision that authorizes qui tam suits is entitled “Actions By Private Persons.” 31 U.S.C. 3730(b).
A private relator also is not the person “charged with
responsibility to act in the circumstances” where evidence of FCA violations comes to light. 31 U.S.C.
3731(b)(2). Under Section 3730(b)(1), a private person
who learns of FCA violations and satisfies the statutory
prerequisites is entitled to file suit “for the person
and for the United States Government.” 31 U.S.C.
3730(b)(1). Nothing in the FCA or in any other federal
law, however, purports to require such a person to commence a qui tam suit. Rather, the person “charged with
29
responsibility to act in the circumstances” is the Department of Justice officer whose official duties include
the investigation and remediation of a particular fraud. 4
C. That reading is confirmed by Section 3729(a)(2)(A),
which uses similar language in a manner that could not
sensibly be read to describe relators. Under that provision, a defendant’s damages liability for a particular
false claim may be reduced if the defendant selfreported the violation within 30 days to “officials of the
United States responsible for investigating false
claims.” 31 U.S.C. 3729(a)(2)(A). The violator must also
“cooperate[ ] with any Government investigation” after
self-reporting. 31 U.S.C. 3729(a)(2)(B). That provision
reflects the evident understanding that the “officials of
the United States” who are “responsible for investigating false claims,” and to whom a violator must self-report
in order to qualify for reduced damages, are government
officials.
Petitioners’ reading would also produce “textual
anomal[ies]” and “counterintuitive results.” Graham
County, 545 U.S. at 416, 421. In this case, petitioners argue that respondent’s suit was time-barred even though
a government suit filed on the same day would have
been timely under Section 3731(b)(2). In cases where
the government learns of a fraud first, however, petitioners’ approach would allow a qui tam suit to go forward even though a government suit filed on the same
Section 3731(b)(2)’s use of the definite article—“the official of the
United States,” 31 U.S.C. 3731(b)(2) (emphasis added)—“indicates
that there is generally only one proper” official. Rumsfeld v. Padilla,
542 U.S. 426, 434 (2004). It is particularly farfetched to suppose that
respondent was the only person “charged with responsibility to act
in the circumstances” when he first learned of petitioners’ alleged
fraud, nearly three years before the present qui tam suit was filed.
4
30
day would be time-barred. See Pet. Br. 44-45. Since a
relator sues as, in effect, “a partial assign[ee] of the
Government’s damages claim,” Stevens, 529 U.S. at 773,
it would be anomalous to allow a relator to sue on a claim
that the government as assignor was time-barred from
asserting. Petitioners’ reading further implies that, if a
relator brings suit in those circumstances and the government intervenes, the suit will be untimely after all, since
on petitioners’ view Section 3731(b)(2) makes the knowledge of the relator dispositive only in non-intervened
qui tam actions. Nothing in the FCA indicates that Congress contemplated a subset of qui tam actions in which
the United States is effectively barred from intervening.
D. Petitioners contend (Br. 43) that, “[u]nder the Eleventh Circuit’s decision, * * * the timeliness of a relator’s
suit would not depend on the factors relevant under default tolling principles—the plaintiff ’s knowledge and
diligence—but on whether and when the government
learned of the fraud.” But even in a qui tam suit where
the government declines to intervene, “the United States
is a ‘real party in interest’ in a case brought under the
FCA.” United States ex rel. Eisenstein v. City of New
York, 556 U.S. 928, 930 (2009) (quoting Fed. R. Civ. P.
17(a)). The gravamen of an FCA qui tam suit is that the
defendant has committed a legal wrong against the government, and the relator acts as “a partial assign[ee]” of
the United States’ claim. Stevens, 529 U.S. at 773.5 Even
Petitioners are wrong to suggest (Br. 43 n.9) that any wellestablished background rule governs the application of tolling and
discovery rules to assigned claims. Compare John Beaudette, Inc.
v. Sentry Ins. A Mut. Co., 94 F. Supp. 2d 77, 109 (D. Mass. 1999)
(looking to the assignor’s knowledge), and Murphy v. Jefferson Pilot Commc’ns Co., 657 F. Supp. 2d 683, 692 (D.S.C. 2008) (same),
with Bierman v. International Bus. Machs. Corp., 547 Fed. Appx.
5
31
when the government initially declines to intervene,
it can (among other prerogatives) object to the relator’s
proposed settlement and voluntary dismissal of the
suit, 31 U.S.C. 3730(b)(1); dismiss the case, 31 U.S.C.
3730(c)(2)(A); intervene later in the proceedings for good
cause shown, 31 U.S.C. 3730(c)(3); and receive the bulk
of any monetary recovery the suit produces, 31 U.S.C.
3730(d)(1) and (2). Given the government’s continuing
interest in a non-intervened qui tam suit, there is nothing
anomalous about Congress’s decision to craft a tolling
rule that turns on the government’s knowledge rather
than on the relator’s.
Petitioners’ argument suggests at the very most
that, if Congress had left it to courts to apply commonlaw tolling principles to the idiosyncratic cause of action
that a relator pursues in a non-intervened qui tam suit,
the choice of a proper tolling rule would not be free from
doubt. Congress obviated the need for such an inquiry,
however, by specifying that the availability of tolling
turns on the knowledge of “the official of the United
States charged with responsibility to act in the circumstances.” 31 U.S.C. 3731(b)(2). Petitioners’ speculation
that common-law tolling principles would support a different rule provides no basis for disregarding the clear
import of the statutory text.
851, 852 (9th Cir. 2013) (looking to the knowledge of both the assignor and assignee).
32
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
MATTHEW GUARNIERI
Assistant to the Solicitor
General
CHARLES W. SCARBOROUGH
MARTIN V. TOTARO
Attorneys
FEBRUARY 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.