Statute of Limitations Issues Under the False Claims Act
The statute of limitations for a qui tam action under the federal False Claims Act (“FCA”) is found in Section 3731(b) of the FCA: “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.”
Thus, under § 3731(b)(1), in a complaint filed in 2013, only kickback activity that occurred over the past six years would be actionable, because claims for violations more than six years old are time barred.
Are the Rules Different for Qui Tam Relators and the Government?
3731(b)(2) is a tolling provision that allows claims that go back ten years if they are brought within three years of the date the federal government knew or should have known of the kickbacks. Some courts have held that § 3731(b)(2) applies to cases brought by relators, whereas a majority of courts have held that the tolling provision applies only in cases in which the government is a party (which, according to these courts, is only when the government intervenes).
Courts are split over whether a qui tam whistleblower is entitled to take advantage of the three-year tolling provision in Section 3731(b)(2). The majority of courts hold that the tolling provision is inapplicable to qui tam plaintiffs. See e.g. United States ex rel. Sanders v. N. Am. Bus Indus., Inc., 546 F.3d 288, 293 (4th Cir. 2008) (“We hold that Section 3731(b)(2) extends the FCA’s statute of limitations beyond six years only in cases in which the United States is a party.”); United States. ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 725-26 (10th Cir. 2006).
The minority view is that the tolling provision in § 3731(b)(2) also applies to cases brought by relators. See e.g. United States ex rel. Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1096 (11th Cir. 2018) (“[W]e conclude that Congress intended for § 3731(b)(2)’s limitations period to be available to relators even when the United States declines to intervene.”); United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1216 (9th Cir. 1996) (“[W]e conclude that Congress did not intend to restrict the tolling provisions of the [False Claims] Act to apply to suits brought by the Attorney General alone, but intended the tolling provision to apply to qui tam plaintiffs as well.”).
Thus, until the Supreme Court definitively resolves the issue of whether the extended statute of limitations applies to claims brought by relators, a relator’s ability to potentially take advantage of the extended 10 year statute of limitations period depends on the jurisdiction in which his or her claims are filed.
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