On May 13, 2019, the Supreme Court issued its opinion in Cochise Consultancy, Inc. v. United States ex rel. Hunt with respect to the applicable statute of limitations in a FCA action in which the Government has declined to intervene. The FCA sets forth two limitation periods applicable to FCA actions and provides that an action must be brought within the longer of either (i) within 6 years after the date on which the violation occurred; or (ii) within three years of the date when facts material to the right of action are known or reasonably should have been known by a relevant official of the United States. In no event may an action be brought more than 10 years after the date on which the violation was committed. The issues in Cochise Consultancy were whether the second, alternative, limitations period applies to an action in which the government has intervened and whether, if so, the relevant official includes the private relator. These issues are important because, if the longer period applies, a relator can bring an action long after (and more than 3 years after) she learned of the FCA violation.
As previously anticipated in our earlier alert memo, the Supreme Court ruled that the longer period applied. It also ruled that the relevant government official did not include the private relator. Its opinion was unanimous. The Court held that, under the plain language of the FCA, both limitation periods applied to all FCA actions, regardless of whether the government intervened. It also held that private relators could not be government officials because, among other reasons, they were not charged with responsibilities under the FCA to investigate and prosecute an FCA action.
The Court’s opinion in Cochise Consultancy highlights the importance of the DOJ’s guidance both with respect to cooperation and with respect to the circumstances under which the government will move to intervene and dismiss. Even if an action is timely as to a private relator, that would not foreclose the government from intervening and dismissing thus, under appropriate circumstances, depriving the private relator of any remedy and ending the case against the defendant.