Potential whistleblowers considering action under the False Claims Act (FCA) should be aware of the strict time limits that govern when they can file a lawsuit. These deadlines are critical, as missing them may result in losing the right to bring a claim or recover a whistleblower reward, regardless of how meritorious the claim might otherwise be.
At Mark A. Strauss Law, we assist whistleblowers in navigating the FCA’s complex timing rules and safeguarding their rights under the law. Whether you’ve just identified a potential violation or have been contemplating action for some time, it is crucial to understand the applicable deadlines and act promptly.
The False Claims Act Statute of Limitations
The FCA statute of limitations is set forth in 31 U.S.C. § 3731(b). It states that whistleblower lawsuits 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 when 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.
This means that whistleblower lawsuits must generally be filed within six years of the violation, with a three-year extension permitted under certain circumstances. Specifically, an extension can be triggered if the government did not know of the fraud and should not reasonably have been aware of it. In such cases, a lawsuit can be filed up to three years after a responsible U.S. official (such as the Attorney General or their designee) learns, or should have learned, of the material facts relating to the violation.
In other words, the three-year extension protects claims when the government could not have reasonably known about the fraud within six years of the date of the violation.
However, this extension is capped: in no case can an FCA case be brought more than ten years after the date of the violation. This ten-year outer limit is known as a statute of repose and serves as an absolute deadline for filing claims.
If this sounds difficult to understand, you’re not alone. The Supreme Court has described this part of the statute as “terribly drafted.”
In any event, because these rules can be complex and court interpretations may vary, consulting with an experienced FCA attorney is strongly recommended.
How the Supreme Court Interprets These Deadlines
In 2019, the United States Supreme Court clarified these rules in a case called Cochise Consultancy, Inc. v. United States ex rel. Hunt. The issue before the Court was whether the extended deadline—based on when the government learned of the fraud—could apply even when the government does not intervene in the lawsuit.
The Court held that it could. In other words, even if a whistleblower files a qui tam lawsuit on their own and the government chooses not to take over the case, the three-year discovery rule still applies based on when the government, not the whistleblower, learned about the fraud. The Court also ruled that the whistleblower is not considered a government “official” for purposes of this rule.
Other Reasons Why Promptly Filing Matters
While the law may permit claims to be filed several years after the violation, waiting is rarely advisable, even if the statute of limitations has not expired.
The longer you wait, the greater the risk that evidence will be lost or witnesses will become unavailable.
A more significant consideration is the first-to-file rule, under which only the first whistleblower to report a specific fraud can pursue a claim or share in any recovery. Thus, filing promptly prevents other potential whistleblowers from beating you to the courthouse.
Additionally, claims may be barred by the “public disclosure bar” if factual information about the fraud becomes public before you file your claim.
The passage of time also affects your credibility as a whistleblower. The government and courts are more likely to view claims with urgency and seriousness when they are brought promptly. Acting quickly strengthens the government’s ability to investigate and increases the likelihood of a favorable outcome.
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Published By
Attorney Mark A. Strauss
Mark is a battle-hardened and tenacious anti-fraud attorney with more than twenty years of experience in complex civil litigation. He has represented qui tam whistleblowers under the False Claims Act as well as victims of fraud under the federal securities laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). His efforts have resulted in the recovery of hundreds of millions of dollars for clients.
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