thus denied defendants’ motion to dismiss).20 Plaintiffs’ claims based on false claims payments made to defendants after June 10, 2004 are thus independently timely under section 3731(b)(1).

The False Claims Act contains a “ten-year statute of repose.” Pogue, 474 F. Supp. 2d at 84. It provides that “in no event [may any party file a False Claims Act lawsuit] more than 10 years after the date on which the violation is committed.” 31 U.S.C. § 3731(b)(2). The statute of repose

See also United States v. Bollinger Shipyards, Inc., No. 12–920, 2013 WL 393037, at *16 (E.D. La. Jan. 30, 2013) (citing “the general proposition that the responsible official is the official who is also responsible for the activity [i.e., the specific federal contract or program] out of which the action arose”). The legislative history of § 3731(b)(2) and analogous cases (see Memo at 16 n.17) support the holding in United States v. Island Park, which recognized “the basic fact that HUD and DOJ are both subdivisions of the same branch of the same government” in refusing to apply the FCA‟s ten-year statute of repose in the face of a similar HUD-OIG report, 791 F. Supp. 354, 363 (E.D.N.Y. 1992). Case 1:12-cv-07527-JMF Document 31 Filed 02/22/13 Page 14 of 26 9 – a Title 18 Criminal Code statute – applies to “offenses” involving “fraud” against the United States.

This stands to reason, because if an agency’s constructive knowledge could be attributed to DOJ, then, as a practical matter, DOJ would no longer be “the official of the United States charged with responsibility to act in the circumstances.” 31 U.S.C. § 3731(b)(2). * * * Try as he might, Armstrong cannot identify any basis in the complaint that would allow the Court to determine conclusively that the relevant Government decision-makers had actual or Case 1:10-cv-00976-RLW Document 114 Filed 09/23/13 Page 26 of 38 20 constructive knowledge that Armstrong was doping.

Kreindler & Kreindler v. United Techs. Corp., 777 F. Supp. 195, 204 (N.D.N.Y. 1991) (holding that the period under 31 U.S.C. § 3731(b)(2) began to run when ―senior Army officials responsible for the Black Hawk program were aware‖ of an engineering change, and rejecting an ―argument that the contracting officer is the only official charged with responsibility to act in the circumstances‖). The legislative history of the 1986 FCA amendments supports this interpretation as one of the chief sponsors of the bill explained during the floor debate, ―The committee has added a tolling provision[] to the False Claims Act which is adopted directly from 28 U.S.C. 2416(c) … care should be taken to assure that the information has reached an official in a position both to recognize the existence of a possible violation of this act and to take steps to address it.

Plaintiffs’ FCA claims to recover these amounts are timely under the FCA’s tolling provision. 31 U.S.C. § 3731(b)(2). False claims totaling approximately $40 million were paid between 1998 and 2004.

And Relator nowhere Case 1:10-cv-00976-RLW Document 88 Filed 07/23/13 Page 43 of 47 -34- alleges that the claims for those payments (as opposed to the payments themselves) were submitted within the six years preceding Relator’s filing of this action.17 Section 3731(b) also contains a provision tolling the United States’ FCA claims for three 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 no more than 10 years after the submission of the claim. 31 U.S.C. § 3731(b)(2). Though the D.C. Circuit has not definitively addressed whether this tolling provision applies to private party relators like Landis, two courts in this District and the vast majority of Circuit Courts to consider the issue have limited Section 3731(b)(2) to FCA claims brought by the United States.

The FCA statute of limitations provides as follows: A civil action brought 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 the 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. 31 U.S.C. § 3731(b). This provision has been interpreted by various courts to apply to qui tam actions (i.e., actions pursued by a relator after the government has declined to intervene) in three different ways.

L. NO. 111- 21, 123 Stat. 1617 (2009)), that provision was moved to 31 U.S.C. § 3731(d). The language remains unchanged.

Relator cannot extend the FCA’s statute of limitations beyond six years before he filed this action. Although the FCA’s standard six-year limitations period is subject to a tolling provision (up to a maximum of 10 years), 31 U.S.C. § 3731(b), that provision does not benefit Relator. In a case in which the government has declined to intervene, the Ninth Circuit holds that the tolling provision runs specifically from when the individual relator knew or reasonably should have known the facts material to his complaint.