Qui Tam Litigation

The Supreme Court has held that the limitations period in Section 3731(b) applies only to actions brought pursuant to Sections 3730(a) and (b), but not to retaliation actions brought by qui tam plaintiffs pursuant to Section 3730(h). See Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 415-422 (2005). Another court in this District, relying on Graham, has found that section 3731(b)(2) does not apply to Relators. See Landis, 2014 U.S. Dist. LEXIS 83313 at *44-*53. There, in determining whether a relator could take advantage of section 3731(b)(2)’s tolling provision in an action in which the Government had intervened, the court declined to follow Pogue and held that “it is not reasonable to construe Section 3731(b)(2) to mean that the application of tolling to relator’s lawsuit turns on the knowledge of the responsible United States government official, when the government has in fact declined to prosecute the claims brought by the relator and the government has not intervened or become a party to the relator’s lawsuit.” Id. at 51. The court reasoned that the “most reasonable and intuitive construction of section 3731(b)(2) is that ‘a civil action under section 3730’ does not apply to all actions under section 3730, but only as to those actions in which the United States has ‘acted,’ by seeking to participate.” Id. Thus, the court held that with respect to Relators claims against non-intervened defendants, the six year statute of limitations in section 3731(a) applied. This holding, however, does not in any way impact the effect of the tolling provision on claims for which the government has intervened and whether those claims are timely if a relator files suit within three years of the relevant government official’s knowledge.

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