I. The Statute of Limitations in False Claims Act Cases
The statute of limitations for a qui tam action 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 (from 2007-2012), because claims for violations more
than six years old are time barred.
II. Are The Rules Different For Qui Tam Relators and the
§ 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
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
U.S. ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472
F.3d 702, 725-26 (10th Cir. 2006); U.S. ex rel. Amin v. George
Washington Univ., 26 F. Supp. 2d 162, 172 (D.D.C. 1998) ("The plain
meaning of the statute supports the conclusion that the three year
knowledge requirement contained in 31 U.S.C. § 3731(b)(2) only
applies to cases in which the government intervenes."); U.S. ex
rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 6 F. Supp. 2d
263, 265 (S.D.N.Y. 1998) ("By the clear statutory language, the
Relator's time is not extended to three years after the United
States official learns of the violation. That provision only
applies to the government."). See U.S. ex rel. Colunga v.
Hercules Inc., No. 89-CV-954 B, 1998 U.S. Dist. LEXIS 21811, 1998
WL 310481, at *3-4 (D. Utah Mar. 6, 1998).
The minority view is that the tolling provision in §
3731(b)(2) also applies to cases brought by relators. See U.S. 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."); U.S. ex rel.
Downy v. Corning, Inc., 118 F. Supp. 2d 1160, 1170 (D.N.M. 2000)
(adopting the Hyatt approach); U.S. ex rel. Bidani v. Lewis, No. 97
C 6502, 1999 U.S. Dist. LEXIS 3530, 1999 WL 163053, at *9 (N.D.
Ill. Mar. 12, 1999) ("[Section] 3731(b)(2) is construed as applying
to actions brought by a qui tam plaintiff and in which the
government has not joined. In such cases, the three-year knowledge
rule is measured by the knowledge of the qui tam plaintiff."); U.S.
ex rel. Colunga v. Hercules Inc., No. 89-CV-954 B, 1998 U.S. Dist.
LEXIS 21811, 1998 WL 310481, at *3-4 (D. Utah Mar. 6, 1998) (§
3731(b)(2) applies to private relators and the three-year period
begins to run not when the relator has knowledge of the violation
but when knowledge of that violation is communicated to the
appropriate United States official).
The Fourth Circuit takes the majority view. See U.S.
ex rel. Sanders v. N. Am. Bus Indus., 2008 U.S. App. LEXIS 22690
(4th Cir. Md. 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.") If and when the
government intervenes, then the ten year limitations period would
apply. See U.S. ex rel. Carter v. Halliburton Co., 2011 U.S. Dist.
LEXIS 145236, at *25 (E.D. Va. Nov. 29, 2011) ("Since the United
States has elected not to intervene in this case, Carter is bound
by the six-year limitations period set forth in §
III. Practice Pointer
Thus, in a majority view jurisdiction, experienced qui tam
lawyers pursuing cases under the False Claims Act should be sure to
plead allegations extending back ten years so that both the
government and the relator would be able to recover for the full
ten year period.
If you have discovered evidence of government
fraud, contact an experienced False Claims Act attorney before
blowing the whistle. You may be entitled to a substantial reward
and the legal protections afforded to whistleblowers under state
and federal laws. The attorneys of Berger & Montague are
nationally recognized experts in Whistleblower/Qui Tam actions with
over a decade of experience pursuing these complex fraud cases. For
more information or to schedule your confidential consultation, use
the form on this page or call us at