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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.