In order to understand how the statute of limitations comes into play with the False Claims Act (FCA), it is helpful to review what the FCA is designed to accomplish, and who it is designed to protect. According to the FCA, it is a crime for anyone to submit a false claim, document or statement to the government, or to cause someone else to submit a false claim, document or statement to the government, either to get money from the government or to avoid having to pay money to the government.
Every law has some sort of statute of limitations, and the FCA is no different. A statute of limitations is essentially the time period during which claims can be brought. After the statute of limitations has tolled (ended), no more claims can be brought for activity that took place beyond the time period provided by the law.
The statute of limitations found in section 3731(b) of the FCA provides that: A civil action under section 3730 may not be brought:
(1) more than 6 years after the date on which the violation of section 3729 is committed, or
(2) more than 3 years after the date on which facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.
Let’s explore each of these in more detail:
The FCA Six-Year Statute of Limitations
Section 3731(b)(1) of the FCA provides that actions or claims must be brought within six years after the date of occurrence; it does not matter when the person bringing the qui tam action found out about the violation(s).
While this seems like it would be a pretty straightforward way to determine the statute of limitations period, courts differ on what date should be the trigger date. Most courts have held that the trigger date is the date of submission of the claim. However, others have held that the six-year time period doesn’t even begin to toll until the underlying claim has been paid. Still other courts factor in whether damages or penalties are sought.
As an example, using the majority opinion on what constitutes the trigger date, an employee who wants to bring a qui tam action in 2016 against her employer for overcharging the government on an ongoing basis could only bring action for the activity that occurred for the previous 6 years. Any activity prior to that would be barred by the statute of limitations under section 3731(b)(1).
The FCA Three-Year/Ten-Year Statute of Limitations
Under FCA section 3731(b)(2), claims can go back as far as ten years, but they must be brought within three years of the date the federal government knew (or should have known) of the violation(s).
The statute’s reference to a government official knowing about the violation is typically interpreted as referring to the responsible official at the Department of Justice. However, other courts take the position that other government officials fit the bill and can be “officials” under the FCA.
It is also important to note that courts are split, but most courts have limited this ten-year tolling period provision to actions in which the government has intervened and has become a party. Only a minority of courts currently allow qui tam whistleblowers to take advantage of this extended tolling period. The rationale of the majority’s position is that the plain language of the statute limits this to the government by specifically referencing officials who had, or who should have had, knowledge of the violation(s).
Obtain Representation for FCA Claims as Early as Possible
To avoid exceeding the statute of limitations on an FCA claim, the best course of action is to contact experienced legal counsel as early in the process as possible. It can feel confusing and stressful as you become aware of wrongdoing, and you probably have questions you need answers to before you make a decision about taking action. Qui tam attorneys can help evaluate the merits of your case, and can help file a claim within the statute of limitations, if it makes sense to do so.
Have questions about the statute of limitations for the False Claims Act? Even if you think it might be too late to speak up, it may not be. The best way to find out for sure is to schedule a consultation with an experienced FCA attorney to discuss your case. Click to contact the Bothwell Law Group online to get the answers you need.