Hunt that the “government knowledge” statute of limitations under the federal FCA, 31 USC § 3729, et seq., applies regardless of whether the government intervenes in a case. As a result, in some circumstances, relators will have up to four additional years to file qui tam claims.The general FCA statute of limitations requires that cases be filed within six years of the alleged violation (31 U.S.C. § 3731(b)(1)) or three years after relevant material facts are known or should have been known by the “official of the United States charged with responsibility to act in the circumstances,” whichever is later, but not more than 10 years after the violation. 31 U.S.C. § 3731(b)(2).

The Whistleblower Wire blog previously discussed the Eleventh Circuit’s holding here and the Supreme Court’s decision to grant certiorari here. In its May 13, 2019 opinion, the Court unanimously affirmed the Eleventh Circuit and held that:The 3-year limitations period under 31 U.S.C. § 3731(b)(2) applies to relator-initiated suits, even when the government declines to intervene; andThe relator is not “the official of the United States” whose knowledge triggers the 3-year limitations period.Brief Summary of the CaseRelator Hunt became aware of the alleged fraud in 2006 and notified the government on November 30, 2010.

Statute of Limitations Under the FCAThe FCA statute of limitations requires that a qui tam action be brought within the later of (1) six years from when the violation occurred or (2) three years after the government knew, or should have known, about the material facts, but not more than 10 years after the violation. 31 U.S.C. § 3731(b). The question in Cochise was whether a private relator can bring an action more than six years after the purported violation, but still within three years after the government learned about the violation.

Normally, a case must be brought within 6 years of “the date on which the violation of [the False Claims Act] is committed.” 31 U.S.C. § 3731(b)(1). The Act’s second statute of limitations provision allows for FCA cases to be brought “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.”

Such suits can be brought by the Attorney General, or by a private person known as a relator “in the name of the Government” (a qui tam action) in cases in which the Government does not intervene. At issue here is the False Claims Act’s statute of limitations for “[a] civil action under section 3730,” which must be brought within the latter of 6 years after the statutory violation occurred, 31 U.S.C. §3731(b)(1); or within 3 years after the United States official charged with the responsibility to act knew or should have known the relevant facts, but not more than 10 years after the violation, §3731(b)(2). In this case, respondent Billy Joe Hunt filed a qui tam action on November 27, 2013 alleging that Cochise had defrauded the Government through early 2007 (more than six years before he filed the complaint).

of the seal period is, strictly speaking, the opinion of the panel majority, the partial dissent (as noted below) expressed no disagreement with that criticism. See infra n.28.[6]Aldridge, 2023 U.S. App. LEXIS 21926,at *9, 30.[7]Id. at *30.[8]Id. at *11.[9]Id. at *11–12.[10]Id. at *12; see also 31 U.S.C. §3729(a)(1).[11]Aldridge, 2023 U.S. App. LEXIS 21926, at *12.[14]Id. at *12–13.[16]Id. at *14–25.[17]Id. at *13 (quoting Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001)).[18]Id. (quoting Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 431 (5th Cir. 2022)) (internal quotation marks and citation omitted by Aldridge).[19]Id. at *25–31.[20]Id. at *29–30 (quoting U.S. ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608 F.3d 871, 881 (D.C. Cir. 2010)); see also id. at *30–31 (finding the government’s complaint did not merely “clarify[]” or “add[] detail” to the relator’s initial allegations, but rather “set forth new ones”) (alterations added).[21]See 31 U.S.C. §3731(c).[22]Aldridge, 2023 U.S. App. LEXIS 21826,at *29 (quoting U.S. ex rel. Vavra v. KBR, Inc., 848 F.3d 366, 382 (5th Cir. 2017)).[23]Id. at *30–31; see also 31 U.S.C. §3731(b)(1).[24] 31 U.S.C. §3731(b)(2).[25]Aldridge, 2023 U.S. App. LEXIS 21926, at *31 (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984).[26]Id. at *34–35 (quoting 31 U.S.C. §3731(b)(2)).[28]Id. at *36. While the panel’s decision in Aldridge was divided, it is worth noting that the partial dissent took issue with the majority solely as to “relation back,” see id. at *56–58 (Ho, J., partially dissenting); the separate writing expresses no quarrel with the majority’s criticism of the DOJ’s repeated seal extension motions.[30]U.S. ex rel. Martin v. Life Care Centers of America, Inc.,912 F. Supp. 2d 618, 623 (E.D. Tenn. 2012); see also Aldridge, 2023 U.S. App. LEXIS 21926, at *37 (quoting Martin, 912 F. Supp. 2d at 623) (four-year prolongation of the seal period “borders on the absurd”).[31]Aldridge, 2023 U.

The Court held that relators can invoke a statute that tolls the usual six-year FCA statute of limitations to permit suit until up to three years “after the date when facts material to the right of action are known or reasonably known to 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.” 31 U.S.C. § 3731(b). In doing so, the Court settled the debate about whether a relator can claim the benefit of this tolling provision even when the government declines to intervene and the relator knew of the alleged violation before the usual six-year statute of limitations expires.

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.

The FCA’s statute of limitations provision is contained at 31 U.S.C. § 3731(b) and provides that: “(b) 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 of 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.” Although § 3731(b)(2) operates as a tolling provision to the six-year statute of limitations period in § 3731(b)(1), there has been a historical split among the circuits regarding whether this tolling provision applies when the government declines to intervene in a relator’s action.

Notably, the defendants had already paid more than $1 million in restitution for their offenses, and they now await sentencing that could result in additional monetary obligations (fines for the corporations and the executive) and probation or imprisonment for the executive. However, because of the False Claims Act’s “collateral estoppel” provision in 31 U.S.C. § 3731(e), the defendants could also be facing a subsequent civil FCA lawsuit without any defense to liability. This case is an important reminder of the interplay between criminal convictions and FCA liability, and the importance of “thinking globally” to resolve government allegations of misconduct.