On November 28, the U.S. Court of Appeals for the Second Circuit held that the service-of-process clock for a False Claims Act (FCA) qui tam complaint begins to run when the district court orders the complaint to be served, not when the district court unseals the complaint.

Although district courts frequently order declined qui tam complaints to be unsealed and served concurrently, that does not always happen, as this case shows.

In U.S. ex rel. Weiner v. Siemens AG, the relator filed a qui tam complaint in 2012 asserting claims under the FCA and New York state law. The United States declined to intervene that same year, but the complaint remained under seal while New York investigated the state law claims. The complaint was finally unsealed in 2019, and over a year later, the court directed the parties to file a status report. Soon after the submission of the status report, the relator indicated that he was prepared to serve the complaint “immediately after such an order” by the district court. The defendant then moved to dismiss, understandably frustrated at the prospect of having to answer allegations that had been declined nearly a decade before.

The Second Circuit rejected the defendant’s argument that the complaint should be dismissed for insufficient service of process. It held that the 90-day period to serve a complaint under Federal Rule of Civil Procedure 4 does not begin to run until the court orders a qui tam complaint to be served, given that section 3730 of the FCA provides that qui tam complaints “shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” The Second Circuit reasoned that its holding accords with the purpose of the FCA because it facilitates whistleblower claims to be addressed on the merits. 

The Second Circuit’s decision clarifies that a relator’s prolonged inaction after the unsealing of an FCA complaint is not cause for dismissal under Rule 4 unless the court has ordered the complaint to be served—even if the United States had already declined to intervene years earlier.

We have previously described the process for filing a qui tam FCA complaint in our FCA Fundamentals Series.