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Eleventh Circuit rules in False Claims Act qui tam case that 3-year statute of limitations under 31 U.S.C. Section 3731(b)(2) applies regardless of whether government intervenes

On April 11, 2018, in United States v. Cochise Consultancy, No. 5:13-cv-02168, the Eleventh Circuit Court of Appeal ruled on an issue of firstimpression – whether a qui tam plaintiff is entitled to the benefit of section 31 U.S.C. Section 3731(b)(2) regardless of whether the government intervenes in the case. Section 3731(b) provides the statute of limitations for False Claims Act qui tam cases, setting forth a general limitations period of 6 years from the date the violation was committed in subsection (1), and an alternative limitations period and statute of repose in subsection (2). The latter subsection provides that an action must be brought within 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. The district court had dismissed the plaintiff’s action, concluding that subsection (2) did not apply since the government had declined to intervene in the case. The Eleventh Circuit disagreed: “[t]he statutory text reflects that this limitations period applies to ‘[a] civil action under section 3730,” and nothing in § 3731(b)(2) makes the limitations period unavailable in qui tam actions under § 3730 simply because the United States decides not to intervene.” The Court additionally concluded that it is the knowledge of the government official, not the relator, that triggers the limitations period.