Should Relators Rely on the Statute of Limitations in the False Claims Act When the Government Declines to Intervene?

Cochise Consultancy, Inc. v. United States, ex rel. Hunt
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Cochise Consultancy, Inc. v. United States, ex rel. Hunt

On February 8, 2019, the National Whistleblower Center (NWC) filed an amicus curiae brief in support of a qui tam whistleblower in a U.S. Supreme Court case regarding the False Claims Act statute of limitations. The Court is set to hear oral arguments in the case Cochise Consultancy, Inc. v. United States, ex rel. Hunt on March 19, 2019. The Court’s decision in this case will resolve a three-way split between the circuit courts.

The question the court must answer is whether False Claims Act (FCA) realtors – that is, whistleblowers – must rely on the statute of limitations in the FCA when the government declines to intervene in the case? If so, does the three-year statute of limitations begin at the date the whistleblower learns of the alleged false claim, or at the date the government learns of the alleged false claim?

Whistleblower lawyer, Stephen M. Kohn, of Kohn, Kohn & Colapinto, who also serves pro bono as the Executive Director of the National Whistleblower Center, served as Council of Record for on the brief. The NWC amicus argued that the “merits of a claim often bear no relation to the duration of a case.” Kohn asserted that the plain language of the statute coupled with the clear expression of Congressional intent regarding a broad interpretation of the law makes it inappropriate for the Court to weigh in and constrict the False Claims Act.  Kohn states, “It is little wonder why Petitioner and their supporting amici have foregone attempts to convince Congress to roll-back provisions of the FCA and are instead urging this Court to enter a policy debate that they have already lost in Congress and the court of public opinion.”

The NWC’s amicus presents four solid arguments as to why the Court should uphold the 11th Circuit’s decision in this case.

  1. The plain language of the statute in question.
  2. Congress has made it clear that they support strengthening the False Claims Act.
  3. The statistical analysis in the Chamber of Commerce’s brief is flawed and does not support the idea that cases using the 10-year statute of limitations in non-intervened cases are meritless and cause hardship to defendants.
  4. The first to file provision in the FCA is the primary method of ensuring FCA complaints are filed promptly in order to avoid dismissal of a claim, not the statute of limitations.

Following arguments, a decision is expected by the end of the Supreme Court current term in July 2019.

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