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Appeal Period Limited to 30 Days When U.S. Not a Party

A False Claims Act qui tam action was properly dismissed as untimely, according to the United States Supreme Court, because the government declined to exercise its right to intervene and the relator did not file his notice of appeal within the required 30-day period. The relator filed the action against a city and several of its officials, alleging a violation of the FCA (31 USC 3729). After the government decided not to exercise its statutory right to intervene, the district court dismissed the complaint and entered judgment for the defendants. The relator then filed a notice of appeal 54 days after the judgment. Generally, Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 USC 2107(a) require the notice to be filed within 30 days of the entry of judgment, but Rule 4(a)(1)(B) and 2107(b) extend the period to 60 days when the United States is a "party" to the litigation. The relator contended the government is a party in every FCA action and its appeal therefore was timely.
Intervention Required

The Court, however, noted intervention is the requisite method for a non-party to become a party. Thus, while the government is aware of and minimally involved in every FCA action, it is not a party to an FCA suit unless it has brought the action or exercised its statutory right to intervene in the case. To hold otherwise would render the FCA's intervention provisions superfluous, contradicting the requirement that statutes should be construed in a manner that gives effect to all of their provisions. Moreover, under the FCA, the government has discretion to intervene in private qui tam actions, and courts cannot disregard that congressional assignment of discretion by designating the government a "party" even after it has declined to assume the rights and burdens attendant to full party status.
Unconvincing Arguments

The Court proceeded to rebut the relator's arguments for making the government a party in all FCA actions. Neither the government's "real party in interest" status (see Federal Rule of Civil Procedure 17(a)), nor the requirement that an FCA action be "brought in the name of the [g]overnment," (31 USC 3730(b)(1)), converts the government into a "party" if it has declined to bring the action or to intervene. In addition, the government's right to receive pleadings and deposition transcripts when it declines to intervene (see 31 USC 3730(c)(3)) does not support, but weighs against, the relator's argument. If the government were a party to every FCA suit, it would already be entitled to these materials under FRCP 5. Also, the fact the government is bound by the judgment in all FCA actions regardless of its participation in the case is not a legitimate basis for disregarding the statute's intervention scheme. Finally, given that Rule 4(a)(1)(B) hinges its 60-day time limit on the government's "party" status, the relator's contention the limit's underlying purpose would be best served by applying it in every FCA case was unavailing. Therefore, the 30-day limit applied, making the relator's notice of appeal untimely. (U.S. ex rel. Eisenstein v. City of New York, US SCt, 53 CCF 79,117)


(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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