On May 13, 2019, the U.S. Supreme Court ruled that the 31 U.S.C. § 3731(b)(2) equitable tolling provision—allowing as much as ten years for the filing of a False Claim Act suit—should be available for private relators as well as for the Department of Justice.
Prior to today’s ruling, there was a consensus among the courts and the parties that regardless of who initiates an FCA civil action—DOJ or a private relator—at a minimum, the six-year limitations period of 31 U.S.C. § 3731(b)(1) applies. Likewise, the parties agreed that if DOJ brings an FCA claim, then the limitations period may be extended to up to a total of ten years post-violation under 31 U.S.C. § 3731(b)(2), if late discovery of the violation does not enable compliance with the six-year rule. However, based on the drafting of the statute of limitations provisions, it was unclear whether the extension (or “equitable tolling”) provision of subpart (b)(2) was also available to a private relator who brings a claim without the involvement or intervention of DOJ. Last month, the Court heard oral argument in the matter of Cochise Consultancy, Inc. et al. v. U.S. ex rel. Hunt to address this issue that had been the subject of a circuit split.
The Court’s decision, as expected, based on the Supreme Court justices’ questions during the Cochise Consultancy oral argument, confirmed that the Court was sympathetic to the view previously adopted by the Eleventh Circuit, which is that there is no persuasive basis for distinguishing between DOJ-initiated and relator-initiated FCA cases with respect to the statute of limitations.
In explaining its rationale for holding that the limitations period in §3731(b)(2) is available in a relator-initiated suit in which the government has declined to intervene, the Court declared that the plain meaning of the text dictated this outcome. According to the Court, both government-initiated suits under §3730(a) and relator-initiated suits under §3730(b) are “civil action[s] under section 3730” and the “plain text of the statute makes the two limitations periods applicable in both types of suits.” The Court rejected Cochise’s reliance on Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, emphasizing that interpretations that would “attribute different meanings to the same phrase” should be avoided. The Court also noted that the statute provides no support for the argument that a realtor in a nonintervened suit is the official of the United States whose knowledge triggers § 3731(b)(2)’s 3-year limitations period.
In light of the Court’s ruling, companies must be aware they are now vulnerable to belated realtor FCA claims for an even longer period of time.
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