Working for Justice

11th Circuit Applies FCA’s Statute of Limitations Tolling Provision to Non-Intervened Cases

Posted June 22nd, 2018 by in Whistleblower Law.

If you are aware of a False Claims Act violation that occurred more than six years ago and are concerned that it may be too late to file a claim, you should give us a call.

Whistleblowers generally have no more than six years to preserve their right to pursue a False Claims Act case before the statute of limitations runs out. The tolling provision of the False Claims Act offers an exception to this rule. See 31 U.S.C. § 3731(b)(2). Under that provision, a case may be filed up to 10 years after the False Claims Act violation, provided that the filing is no 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.

Id. However, the Fourth and Tenth Circuits have held that only the Government may take advantage of the tolling provision, declining to apply it to non-intervened cases. See United States ex rel Sanders v. N.Am.Bus Indus., Inc., 546 F.3d 288, 298 (4th Cir. 2008); United States ex rel Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 726 (10th Cir. 2006). These rulings create a disincentive for whistleblowers to file cases outside of the six-year period, because they effectively eliminate the possibility of a recovery following a declination.

Recently, however, in United States ex rel Hunt v. Cochise Consultancy, Inc. 887 F.3d 1081 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit ruled that the tolling provision applies even to cases in which the government has declined to intervene in the action. This is an important victory for whistleblowers looking to file cases in Florida, Georgia and Alabama. As a practical matter, it means that a whistleblower may sometimes file a False Claims Act case in those states up to ten years after the violation occurred, without the risk of dismissal should Government drop out of the suit. Whistleblowers pursuing non-intervened cases in the Ninth Circuit may sometimes avail themselves of the tolling provision as well. See United States ex rel. Hyatt v. Northrop Corp. 91 F.3d 1211, 1217 (9th Cir. 1996). But, in Hunt, the Eleventh Circuit was the first to apply the tolling provision equivalently to non-intervened and intervened cases.

Ross Brooks

Ross Brooks

Ross Brooks is a Partner in the New York office of Sanford Heisler Sharp. Mr. Brooks is Co-Chair of the Firm’s whistleblower practice and has been counsel in False Claims Act matters that have returned nearly $1.5 billion in taxpayer dollars to the government. Learn More

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