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Editor: Mike Bothwell
Profession: Qui Tam Attorney

Category: Legal Analysis

On August 19, 2008, the Second Circuit was faced with the issue of whether a notice of appeal for an unintervened qui tam must be filed within thirty days, as is generally applicable to civil actions, or within the sixty days allowed when the United States is a party. In U.S. ex. Rel. Eisenstein v. City of New York, the Court held that the United States is not a party to a qui tam action where it fails to intervene, and so the Relator must file his notice within thirty days. Because Eisenstein filed his notice of appeal fifty-four days after his complaint was dismissed, the Second Circuit dismissed the appeal as untimely.

The Court focused on the facts that once the government chooses to not intervene, it may only do so at a later date with good cause and is otherwise unable to participate in the action. The Court rejected Eisenstein's argument that a "real party in interest" is synonymous to a "party" under rule 4(a), finding the omission of "real party in interest" from the language of rule 4(a)(1)(b) to be meaningful.

As the Court itself notes, this ruling puts it in conflict with other circuits that have ruled on the same issue. See United States ex rel. Lu v. Ou, 368 F.3d 773, 775 (7th Cir. 2004) (applying the 60-day limit); United States ex rel. Russell v. Epic Healthcare Mgmt. Group, 193 F.3d 304, 308 (5th Cir. 1999) (same); United States ex rel. Haycock v. Hughes Aircraft Co., 98 F.3d 1100, 1102 (9th Cir. 1996) (same); compare United States ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588 F.2d 1327, 1329 (10th Cir. 1978) (per curiam) (applying the 30-day limit).