A Supreme Court case to be decided this term will determine whether to extend the statute of limitations for private relators’ FCA actions in which the government does not intervene. United States ex rel. Hunt v. Cochise Consultancy, 2018 U.S. LEXIS 6778, at *1 (Nov. 16, 2018). The Department of Justice wants relators to have the same 10 year statute of limitations as the government has in cases where the government does intervene.
The Circuit Courts have been all over the map on this question. In the case on appeal to the Supreme Court, the Eleventh Circuit became the first Circuit to allow a private relator the same 10 year limitations period as the government. United States ex rel. Hunt v. Cochise Consultancy, 887 F.3d 1081, 1083 (11th Cir. 2018). The Fourth, Fifth and Tenth Circuits have all held the opposite, that the 10 year limitations period does not apply to qui tam suits in which the government does not intervene. United States ex rel. Erskine v. Barker, No. 99-50034, 2000 U.S. App. LEXIS 40325, at *2-6 (5th Cir. Apr. 13, 2000); United States ex rel. Sikkenga v. Regence Bluecross Blueshield, 472 F.3d 702, 722-26 (10th Cir. 2006); United States ex rel. Sanders v. N. Am. Bus Indus., 546 F.3d 288, 293 (5th Cir. 2008). Taking the middle position, the Third and Ninth Circuits have held that the 10 year limitations period does apply to qui tam suits where the government does not intervene, but that the 3 year period begins when “the qui tam plaintiff... knew or reasonably should have known of the facts material to the right of action.” United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1212-13 (9th Cir. 1996); see also United States ex rel. Malloy v. Telephonics Corp., 68 F. App’x 270, 273 (3d Cir. 2003).
The Supreme Court accepted cert to resolve this Circuit split on November 16, 2018. The FCA’s statute of limitations is already complex. No matter which way this case comes out, it will at least resolve one of those complexities.