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No. 08-660

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA EX REL.

IRWIN EISENSTEIN

v.

CITY OF NEW YORK, NEW YORK, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

ELENA KAGAN
Solicitor General
Counsel of Record
MICHAEL F. HERTZ
Acting Assistant Attorney
General
MALCOLM L. STEWART
Deputy Solicitor General
JEFFREY B. WALL
Assistant to the Solicitor
General
DOUGLAS N. LETTER
MICHAEL D. GRANSTON
BENJAMIN M. SHULTZ
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Under Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal in a federal civil action gen erally must be filed within 30 days after the entry of the judgment or order from which the appeal is taken. If the United States is a "party" to the suit, however, Rule 4(a)(1)(B) provides that the notice of appeal may be filed within 60 days after entry of the relevant judgment or order. The question presented is as follows:

Whether, when the government declines to intervene or otherwise actively participate in a qui tam action under the False Claims Act, the United States is a "par ty" to the suit for purposes of Rule 4(a)(1)(B).

No. 08-660

UNITED STATES OF AMERICA EX REL.

IRWIN EISENSTEIN

v.

CITY OF NEW YORK, NEW YORK, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

 

INTEREST OF THE UNITED STATES

This case involves a qui tam suit under the False Claims Act (FCA or Act), 31 U.S.C. 3729 et seq. The FCA is the primary mechanism by which the federal government recoups losses suffered through fraud, and the determination whether the government is a "party" to a qui tam action in which it has declined to intervene or otherwise actively participate may affect the nature of the government's obligations in such suits. The United States therefore has a substantial interest in the Court's resolution of the question presented in this case.

STATEMENT

1. As amended, the FCA imposes civil liability upon "[a]ny person" who, inter alia, "knowingly presents, or causes to be presented, to an officer or employee of the United States Government * * * a false or fraudulent claim for payment or approval." 31 U.S.C. 3729(a)(1). A person who is found to have violated the FCA is liable for civil penalties "plus 3 times the amount of damages which the Government sustains because of the act of that person." 31 U.S.C. 3729(a).

An action under the FCA may be commenced in ei ther of two ways. First, the government itself may bring a civil action against the alleged false claimant. 31 U.S.C. 3730(a). Second, a private person (known as a relator) may bring a qui tam civil action "for the per son and for the United States Government." 31 U.S.C. 3730(b)(1). In that event, "[t]he action shall be brought in the name of the Government." Ibid.

If a relator brings a qui tam action, the complaint is filed in camera and remains under seal for at least 60 days. 31 U.S.C. 3730(b)(2). The complaint "shall not be served on the defendant until the court so orders," ibid., and "[t]he defendant shall not be required to respond to any complaint filed under [Section 3730] until 20 days after the complaint is unsealed and served upon the de fendant," 31 U.S.C. 3730(b)(3). In addition to filing the complaint under seal, the relator must serve a copy of the complaint and any supporting evidence on the gov ernment. 31 U.S.C. 3730(b)(2).

Within 60 days after receiving the complaint and sup porting evidence, the government may elect either "to intervene and proceed with the action," 31 U.S.C. 3730(b)(2), or to "notify the court that it declines to take over the action," 31 U.S.C. 3730(b)(4). The 60-day pe riod may be extended "for good cause shown" on motion by the government. 31 U.S.C. 3730(b)(3). If the govern ment elects to intervene, it "shall have the primary re sponsibility for prosecuting the action, and shall not be bound" by any act of the relator. 31 U.S.C. 3730(c)(1). The relator may continue as a party to the action, ibid., however, and is entitled to a hearing before voluntary dismissal and to a court determination of reasonableness before settlement, 31 U.S.C. 3730(c)(2)(A)-(B). If the government declines to intervene, the relator has the exclusive right to conduct the action. See 31 U.S.C. 3730(b)(4)(B), (b)(5), and (c)(3).

If the government intervenes and the suit ultimately produces a monetary recovery, the relator is generally entitled to between 15 and 25 percent of the proceeds. 31 U.S.C. 3730(d)(1). If the government declines to in tervene and the relator successfully prosecutes the ac tion, the relator receives between 25 and 30 percent of the recovery. 31 U.S.C. 3730(d)(2).

2. Federal Rule of Appellate Procedure 4(a) estab lishes the deadlines for filing a notice of appeal in a fed eral civil action. Under Rule 4(a)(1)(A), the notice of ap peal generally must be filed within 30 days after the en try of the judgment or order from which the appeal is taken. "When the United States or its officer or agency is a party" to the suit, however, "the notice of appeal may be filed by any party within 60 days after the judg ment or order appealed from is entered." Fed. R. App. P. 4(a)(1)(B). The timing requirements set forth in Rule 4(a)(1)(A) and (B) largely track the provisions of 28 U.S.C. 2107(a) and (b).

3. This case involves a qui tam suit filed by petition er Irwin Eisenstein against respondents, the City of New York and Michael Bloomberg. Petitioner alleged that respondents had violated federal and state law by requiring non-resident City employees to pay a fee equivalent to the municipal income taxes paid by resi dent City employees. J.A. 27-31. Petitioner asserted that imposition of the fee on non-resident City employ ees violated the FCA because those employees are able to deduct the fee as an expense for federal income tax purposes, thereby depriving the federal government of tax revenue. J.A. 38, 41-42.

As required by the FCA, see 31 U.S.C. 3730(b)(2), petitioner's complaint was filed under seal and was not served upon respondents. J.A. 1. The United States de clined to intervene to take over the action, J.A. 46, but requested service of all pleadings and reserved its rights to order any deposition transcripts and to move to inter vene for good cause at a later date, J.A. 47. After declin ing to intervene, the United States had no involvement in the case at any point before the district court.

Petitioner's complaint was unsealed and served on respondents. J.A. 1-2, 49-50. Respondents subsequently moved to dismiss the complaint for failure to state a claim. J.A. 3. On March 30, 2006, the district court granted respondents' motion to dismiss. Pet. App. 16a-43a. On April 12, 2006, the district court entered judgment in respondents' favor. J.A. 5. On June 5, 2006, 54 days after the entry of judgment, petitioner filed his notice of appeal. J.A. 6, 51-55.

4. a. The court of appeals sua sponte ordered the parties to brief whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) or the 60-day time limit in Rule 4(a)(1)(B) "applies to a qui tam action where the United States declines to intervene in the pro ceedings." J.A. 57. Petitioner and respondents filed briefs on that issue, at which time respondents also moved to dismiss the appeal in part for lack of jurisdic tion. J.A. 11-12. The court of appeals subsequently ap pointed counsel for petitioner, J.A. 14, and the parties then submitted additional briefs addressing both the motion to dismiss and the merits of the appeal, J.A. 16- 18. At that point, the United States filed a brief as ami cus curiae in support of respondents' motion to dismiss, without addressing the merits of the appeal. J.A. 18.

b. The court of appeals granted respondents' motion to dismiss the appeal. Pet. App. 1a-15a. The court held that "the United States is not a 'party' * * * for the purposes of the deadline for filing a notice of appeal" when it "fails to intervene or to raise or resist any legal claim." Id. at 7a. The court rejected petitioner's argu ment that, because the government is a real party in interest to a declined qui tam suit, it is a "party" to such an action within the meaning of Federal Rule of Appel late Procedure 4(a)(1)(B). Id. at 8a-10a. The court also explained that the 60-day filing period under Rule 4(a)(1)(B) serves to accommodate the government's in ternal processes for deciding whether an appeal should be taken in cases where it is a potential appellant, and the court found that rationale to be inapplicable to the present case. Id. at 10a-11a. While acknowledging that other circuits had reached a contrary conclusion, the court "d[id] not agree that a 'literal' reading of Rule 4(a) accords a 60-day filing period to private individuals who bring suit in the name of the United States." Id. at 13a- 14a. The court was also unpersuaded that its reading of Rule 4(a) was likely to produce confusion among attor neys responsible for filing notices of appeal in similar cases in the future. Id. at 14a.

SUMMARY OF ARGUMENT

1. a. The United States is typically not a party to a qui tam action for purposes of Rule 4(a)(1)(B) where, as here, it declines to intervene. Intervention is the stan dard mechanism by which a nonparty becomes a party to a civil action. The FCA authorizes the government either to intervene in a qui tam suit or to decline to do so. The statute thus indicates both that the mere filing of a qui tam suit is insufficient to make the government a party to the action and that the government should be allowed to choose whether it will become a party. Con gress's reliance on the ordinary understanding of inter vention is confirmed by other aspects of the FCA's text and history.

b. Although intervention is the usual means by which the government becomes a party to a qui tam suit, the government may also become a party by exercising certain rights expressly granted by the FCA to direct the disposition of the litigation over the relator's objec tion. In this case, however, the government did not ex ercise those prerogatives or actively participate in any way during the district court proceedings. This case therefore does not present the question under precisely what circumstances the United States may decline to intervene in a qui tam suit yet nevertheless become a party for purposes of Rule 4(a)(1)(B) through subse quent participation before the district court.

2. a. Contrary to petitioner's contention, the pur poses of Rule 4(a)(1)(B) are not implicated here. The reason for allowing 60 days to appeal when the govern ment is a party is that its institutional decisionmaking processes take more time than those of private litigants. The government does not conduct those processes in qui tam suits in which it has neither intervened nor exer cised its statutory rights to direct the litigation.

b. The status of the United States as a real party in interest in a declined qui tam suit is likewise insuffi cient to make it a "party" within the meaning of Rule 4(a)(1)(B). Petitioner brought this action as the partial assignee of the government's damages claim. Both peti tioner and the government are therefore real parties in interest, and either could have brought suit to enforce the claim. The government did not bring the action, however, and it neither intervened nor actively partici pated before the district court. Petitioner therefore is the only party-plaintiff to this action, even though the government's entitlement to the bulk of any recovery gives it a practical stake in the outcome of the suit.

c. Petitioner is also incorrect in arguing that, be cause a qui tam suit is required to be brought in the name of the government, the United States is a "party" to the case within the meaning of Rule 4(a)(1)(B). Cap tions are not determinative of party status. In any event, petitioner's caption identifies the government not as a party-plaintiff but as an entity on whose behalf the action is brought. And whatever the probative value of the FCA's naming requirement, it is outweighed by com peting inferences from the remainder of the FCA.

d. Finally, petitioner is incorrect in contending that the need for clarity favors a 60-day filing period. If this Court concludes that the relevant FCA provisions are better read not to make the United States a "party" to this declined qui tam action within the meaning of Rule 4(a)(1)(B), it will resolve any ambiguity that now exists, and future litigants will note and follow the Court's deci sion. That is particularly so because relators may not litigate pro se under the FCA.

ARGUMENT

I. THE UNITED STATES IS NOT A "PARTY" TO THIS CASE WITHIN THE MEANING OF FEDERAL RULE OF AP PELLATE PROCEDURE 4(a)(1)(B) BECAUSE THE GOV ERNMENT DECLINED TO INTERVENE AND DID NOT OTHERWISE ACTIVELY PARTICIPATE BEFORE THE DISTRICT COURT

Under 28 U.S.C. 2107(a) and Federal Rule of Appel late Procedure 4(a)(1)(A), the notice of appeal in a fed eral civil case generally must be filed within 30 days after the judgment or order from which the appeal is taken. When the United States or a federal officer or agency is a "party" to the case, however, the time limit for all parties to file a notice of appeal is 60 days rather than 30 days. See 28 U.S.C. 2107(b); Fed. R. App. P. 4(a)(1)(B). Neither Section 2107 nor Rule 4 defines the term "party" for purposes of those provisions. For that reason, in determining party status for appellate pur poses, this Court has looked to whether and how the putative party participated in the action before the dis trict court. See, e.g., Lance v. Dennis, 546 U.S. 459, 465 (2006) (per curiam); Devlin v. Scardelletti, 536 U.S. 1, 8-9 (2002); Marino v. Ortiz, 484 U.S. 301, 303-304 (1988) (per curiam).

Those decisions make clear that a nonparty may be come a party to a civil action in one of two ways: (i) by invoking formal procedural mechanisms like inter vention, substitution, or third-party practice, see, e.g., Marino, 484 U.S. at 303-304 (nonparties who objected to settlement but did not intervene could not appeal); or (ii) by participating in the action in a manner and to a degree that justifies treatment as a party, see, e.g., Devlin, 536 U.S. at 10-11 (nonnamed class members who objected to settlement but did not intervene could nev ertheless appeal).

When the government exercises its right under the FCA to intervene and assume control of a qui tam ac tion, it acquires the status of a "party" to the suit for purposes of, inter alia, 28 U.S.C. 2107(b) and Rule 4(a)(1)(B). Even without formal intervention, the gov ernment may in rare circumstances become a party to a declined qui tam action by asserting particular rights under the FCA to direct the disposition of the suit. But where, as here, the government neither intervenes in a qui tam suit nor otherwise actively participates in the proceedings before the district court, it is not a "party" for purposes of Section 2107(b) and Rule 4(a)(1)(B).

A. Where, As Here, The United States Elects Not To Inter vene In A Qui Tam Suit Brought Under The FCA, It Gen erally Declines To Assume Both The Rights And Obliga tions Of Party Status

1. The Federal Rules of Civil Procedure establish various procedural mechanisms by which a nonparty can become a party to a civil action. The most commonly used of those mechanisms is intervention under Federal Rule of Civil Procedure 24. The purpose of intervention is to allow a nonparty to a civil action to come into the action as a party and participate as such alongside the original parties. See Karcher v. May, 484 U.S. 72, 77 (1987) ("One who is not an original party to a lawsuit may of course become a party by intervention, substitu tion, or third-party practice."); 7C Charles Alan Wright et al., Federal Practice and Procedure § 1901, at 257 (3d ed. 2007) (Wright) (defining "[i]ntervention" as "a procedure by which an outsider with an interest in a lawsuit may come in as a party though the outsider has not been named as a party by the existing litigants").

Intervention under the FCA serves a similar pur pose. When a relator brings a qui tam action, he must file the complaint under seal and refrain from serving it upon the defendant for at least 60 days. 31 U.S.C 3730(b)(2). The relator also must serve a copy of the complaint and any supporting evidence on the govern ment. Ibid. At that point, the government "may elect to intervene and proceed with the action" before the com plaint is unsealed and served upon the defendant. Ibid. Although the government may move to extend the time during which the complaint remains under seal, 31 U.S.C. 3730(b)(3), "[b]efore the expiration of the 60-day period or any extensions" it must make a choice: either "proceed with the action, in which case the action shall be conducted by the Government," or "notify the court that it declines to take over the action, in which case the [relator] shall have the right to conduct the action," 31 U.S.C. 3730(b)(4)(A) and (B). Through the proce dural mechanism of intervention, Congress gave the Executive an option in FCA actions: intervene as a party-plaintiff and direct the litigation, or remain as a nonparty and allow the relator to conduct the suit.

The government's ability to choose whether to inter vene in particular qui tam actions is crucial to ensure that such suits do not impose unmanageable burdens on federal personnel. If the United States were treated as a "party" to all qui tam suits for purposes of the Federal Rules generally, the government would be subject to substantial litigation burdens, most notably the require ments governing party discovery imposed by Federal Rules of Civil Procedure 26-37, simply as a result of pri vate relators' decisions to initiate qui tam actions. The FCA provisions governing intervention by the United States ensure that federal attorneys can decide, in each qui tam suit, whether the United States will assume the combination of advantages and disadvantages that party status entails.1

2. Because intervention is the typical process by which a nonparty becomes a party to a lawsuit, the FCA's authorization for the government "to intervene" in a qui tam action, 31 U.S.C. 3730(b)(2) and (c)(3), would be superfluous if the government were already a party to the suit. The FCA's intervention provisions thus demonstrate that the mere filing of a qui tam ac tion is not sufficient to vest the United States with party status. See, e.g., BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) ("Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning."). The inference that Congress em ployed the word "intervene" in its usual sense is particu larly strong because that word is a legal term of art with an established legal meaning. See Fed. R. Civ. P. 24. "[W]here Congress borrows terms of art" with an estab lished legal meaning, "it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken." Morissette v. United States, 342 U.S. 246, 263 (1952); Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't. of Health & Human Res., 532 U.S. 598, 615 (2001) (Scalia, J., concurring).

The history of the FCA confirms that Congress em ployed the term "intervene" in its customary and usual sense. As originally enacted in 1863, the FCA did not permit the government to assume control of the relator's action. See FCA, ch. 67, 12 Stat. 696; United States v. Griswold, 30 F. 762 (C.C.D. Or. 1887). That was true even though then, as now, the relator brought suit "for himself as for the United States" and the suit was re quired to be brought "in the name of the United States." FCA, Rev. Stat. § 3491 (1878). Once a relator com menced his action, the government was powerless to interfere with its prosecution, United States ex rel. Marcus v. Hess, 317 U.S. 537, 546-547 (1943), although the government's consent was a prerequisite to dis missal of the suit, Rev. Stat. § 3491 (1878).

To increase the government's level of control over FCA litigation, Congress amended the Act in 1943 to provide that "[t]he Government may proceed with the action by entering an appearance by the 60th day after being notified" of the filing of the complaint. 31 U.S.C. 3730(b)(2) (1982). The amended statute provided that if the government "within said period shall enter appear ance in such suit the same shall be carried on solely by the United States." 31 U.S.C. 232(C) (1976). If, how ever, the government either failed to enter an appear ance or else entered but then failed to proceed, the rela tor could "carry on such suit." 31 U.S.C. 232(D) (1976). Either way, only one party could pursue the action: the government or the relator.

When it again amended the FCA in 1986, Congress substantially overhauled the Act's qui tam provisions. As explained above, the statute in its current form au thorizes the government "to intervene and proceed with the action" at its outset, 31 U.S.C. 3730(b)(2), or "to in tervene at a later date upon a showing of good cause," 31 U.S.C. 3730(c)(3). Unlike the 1943 version of the stat ute, however, the FCA now allows the relator "to con tinue as a party to the action," 31 U.S.C. 3730(c)(1), even in cases in which the government has exercised its right to assume control over the litigation. Use of the term "intervene" in the current FCA is thus particularly apt because the government's participation as a party sup plements, rather than displaces, the relator as a party to the action.

3. Congress's understanding of intervention as the typical process by which the government becomes a party to a qui tam action is confirmed by related provi sions of law. See, e.g., Davis v. Michigan Dep't. of the Treasury, 489 U.S. 803, 809 (1989) ("It is a fundamental canon of statutory construction that the words of a stat ute must be read in their context and with a view to their place in the overall statutory scheme."). Under the 1986 amendments to the FCA, even when the government elects not to intervene in a qui tam action, it may re quest to "be served with copies of all pleadings filed in the action." 31 U.S.C. 3730(c)(3). That provision would be superfluous if the government were already a party to the action, because Federal Rule of Civil Procedure 5 requires service on "every party [of] a pleading filed after the original complaint." Fed. R. Civ. P. 5(a)(1)(B); see Fed. R. Civ. P. 5(a) (1986) (requiring that "every pleading subsequent to the original complaint * * * be served upon each of the parties"). This Court ordinarily attempts to avoid rendering statutory provisions super fluous, TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001), and presumes that Congress is aware of the legal backdrop against which it acts, Cannon v. University of Chi., 441 U.S. 677, 696-697 (1979).

Federal Rule of Civil Procedure 24, which governs intervention in civil actions generally, likewise presumes that putative intervenors are not already parties to the action. Rule 24(a), which governs intervention of right, allows intervention in certain circumstances only if "ex isting parties" do not adequately represent "the movant's * * * interest." Fed. R. Civ. P. 24(a)(2). And Rule 24(b), which governs permissive intervention, al lows intervention only if it would not "unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). Moreover, Rule 24(b) specifically permits a federal officer or agency to inter vene only "if a party's claim or defense" is founded upon federal law administered by that officer or agency. Fed. R. Civ. P. 24(b)(2). Both mandatory and permissive intervention reflect the assumption that those who move to intervene in a pending case, including government officers and agencies, are not themselves parties to the action.

Petitioner contends that intervention is not a proper test of party status because, "even after declination, the Government's presence in a qui tam action is pervasive." Br. 19. That contention overstates the government's role. To be sure, the government has significant prerog atives under the FCA even after it has initially declined to intervene. Those include the right "to intervene at a later date upon a showing of good cause," 31 U.S.C. 3730(c)(3); the right to object to the relator's settlement and voluntary dismissal of the suit, see 31 U.S.C. 3730(b)(1); the right to dismiss a case over the relator's objection, see 31 U.S.C. 3730(c)(2)(A); and the right to seek a stay of the relator's discovery, see 31 U.S.C. 3730(c)(4). The government may also request the plead ings and deposition transcripts, see 31 U.S.C. 3730(c)(3), which ensures that federal personnel can monitor the suit in order to decide whether the government should exercise its other rights under the FCA.

Merely monitoring the pleadings and transcripts in an FCA case, however, is not the sort of active participa tion that is ordinarily associated with party status. And unless and until the government actually exercises its more substantive prerogatives in a particular case, their mere availability is likewise insufficient to make the United States a party to the suit. The statute's confer ral of the rights described provides no sound reason to deprive the intervention decision of its ordinary effect. Those rights may indicate that "[t]he Government's role" in a declined qui tam action "is sui generis," Pet. Br. 27 n.17, but they do not transform a monitor into a participant or an observer into a party.

B. The FCA Allows The United States To Become A Party By Exercising Its Rights To Participate

1. For the reasons set forth above, when the govern ment declines to intervene at the outset of a qui tam suit, and does not seek leave to intervene at a later stage, the usual inference is that the government has chosen to forgo the benefits and to avoid the burdens that party status would entail. This Court has recog nized, however, that a nonparty may become a party to a civil action for at least some purposes by participating in a manner and to a degree that justifies treatment as a party, even when it does not invoke a formal proce dural mechanism like intervention. See Devlin, 536 U.S. at 10-11; Blossom v. Milwaukee R.R., 68 U.S. (1 Wall.) 655 (1864).

The present case does not require the Court to apply that principle to the FCA context or to identify the pre cise circumstances under which the government might become a party to a declined qui tam action without for mally intervening. See Keene Corp. v. United States, 508 U.S. 200, 212 n.6 (1993) ("Because the issue is not presented on the facts of this case, we need not decide [it]."). In this case, the government filed a standard no tice that it had elected to decline intervention, J.A. 46-48, and it did not participate thereafter in the pro ceedings before the district court, J.A. 1-8. Thus, unless the Court agrees with petitioner's contention that the United States is a "party" to every declined qui tam ac tion for purposes of Rule 4(a)(1)(B), the judgment of the court of appeals should be affirmed, since the govern ment undertook no form of active participation here.

2. Although this Court need not decide what types of participation by the government in a declined qui tam action might warrant treatment as a party, it should not announce a categorical rule that intervention is the only means by which the government can become a party to such a case. In rare circumstances, the government can become a party to a declined qui tam action, even with out formal intervention, by asserting its rights under the FCA to direct the disposition of the lawsuit. The FCA authorizes the government to dismiss a qui tam action notwithstanding the relator's objection, see 31 U.S.C. 3730(c)(2)(A), and to veto a proposed settlement and voluntary dismissal of the suit, 31 U.S.C. 3730(b)(1).

The statute does not make intervention a prerequisite to the exercise of those prerogatives.2

When it invokes those statutory powers, the govern ment requests action from the district court that is ad verse to the relator, indicating that the government is no longer content to accept the relator as its representa tive. In requesting such action, moreover, the govern ment does not merely advise the district court as to the proper construction of applicable legal principles, but asserts statutory rights to direct the disposition of the litigation.3 Contrary to petitioner's contention (Br. 28- 30), treating the government as a party in those two nar row circumstances, where the United States has sought to exercise an express statutory right to direct the dis position of a qui tam action over the relator's objection, would create no meaningful uncertainty concerning the application of Rule 4(a)(1)(B) to declined qui tam suits generally.4

3. That position is consistent with the government's appeal in Searcy v. Philips Electronics North America Corp., 117 F.3d 154 (5th Cir. 1997). In Searcy, the gov ernment initially declined to intervene in a qui tam ac tion, but subsequently objected to a proposed settlement between the relator and the defendant, see 31 U.S.C. 3730(b)(1), without first seeking leave to intervene for good cause, see 31 U.S.C. 3730(c)(3). Searcy, 117 F.3d at 155. The district court approved the settlement, and the government then sought to appeal. Id. at 155-156. In the Fifth Circuit, the relator contended that the gov ernment was not a proper appellant because it had not intervened at any point. Id. at 156.

In response, the government argued that it was enti tled to appeal because it was the "real party in interest" and "the real plaintiff" in the suit. Gov't Br. at 13, Searcy, supra (No. 96-40515) (quoting United States ex rel. Milam v. University of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 48 (4th Cir. 1992)). The government further suggested that the United States should be re garded as a party for purposes of appeal in declined qui tam cases generally. See id. at 13-15. Although that ar gument was overbroad, the government also contended, and the Fifth Circuit correctly held, that the govern ment was entitled to appeal in the circumstances of that case because it had opposed the settlement in the dis trict court, as the FCA expressly authorized it to do. Id. at 15-20; see Searcy, 117 F.3d at 157-158. The Fifth Cir cuit concluded that "the district court was mistaken in determining that the government has no veto power" over a proposed settlement of a declined qui tam suit, and that "the government should be able to correct that error by raising its veto power in an appeal to this court, even if it chooses not to intervene." Id. at 157. The deci sion in Searcy is thus consistent with the government's current view that, although some affirmative choice by the government is necessary for the United States to become a party to a qui tam action, the government can acquire party status by asserting specific statutory rights under the FCA as well as by formally intervening.

II. PETITIONER'S ARGUMENTS THAT THE UNITED STATES IS A PARTY UNDER RULE 4 EVEN WHEN IT DECLINES TO INTERVENE OR PARTICIPATE LACK MERIT

A. The Purpose Of Rule 4(a)(1)(B) Is Not Implicated When The United States Neither Intervenes Nor Participates In The Action

Petitioner and his amici do not contend (Pet. Br. 36 n.27; Taxpayers Against Fraud (TAF) Br. 14 n.12) that the United States is a party for all purposes to a de clined qui tam action. Indeed, petitioner expressly (and correctly) disavows the contention that the United States is subject, in a declined qui tam suit, to the dis covery obligations imposed upon parties to litigation by Federal Rules of Civil Procedure 26-37. See Pet. Br. 36 n.27. Rather, petitioner and his amici contend that the United States is a "party" to a declined qui tam action within the meaning of Rule 4(a)(1)(B) even if it is not for other purposes a "party" to such a suit. That argument is misconceived.

It is certainly true that one can be a "party" to a law suit for some purposes and not others. See Devlin, 536 U.S. at 9-10. And if the purposes underlying Rule 4(a)(1)(B)'s extended time limit were directly and sub stantially implicated by declined qui tam suits, it might be appropriate to treat the United States as a "party" to such actions within the meaning of Rule 4(a)(1)(B), even though the government is not a "party" to such suits under other provisions of law. In fact, however, the ra tionale for Rule 4(a)(1)(B)'s longer time limit in federal- party cases is wholly inapplicable here.

Rule 4(a)(1)(B) allows 60 days to file a notice of ap peal when the government is a party because "the gov ernment's institutional decisionmaking practices require more time to decide whether to appeal." United States ex rel. Russell v. Epic Healthcare Mgmt. Group, 193 F.3d 304, 306 (5th Cir. 1999). That rationale is clear from the Advisory Committee Notes accompanying Rule 4(a)(1)(B)'s predecessor, which are entitled to "weight" in interpreting the Rule. Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-316 (1988); Schiavone v. Fortune, 477 U.S. 21, 30-31 (1986). In adopting the 60-day period, the Committee explained that, when the government is deciding whether to appeal, the affected agency or de partment must forward its recommendation to the rele vant Assistant Attorney General in the Department of Justice, "who must examine the case and make a recom mendation. The file then goes to the Solicitor General, who must take the time to go through the papers and reach a conclusion." Fed. R. Civ. P. 73 advisory commit tee's note (1946) (28 U.S.C. App. at 5200 (1958)). "If these departments are rushed," the Committee contin ued, "the result will be that an appeal is taken merely to preserve the right, or without adequate consider ation." Ibid.

As the court of appeals recognized, "[that] rationale is obviously inapplicable to the present case, where the government has played no part in the underlying litiga tion other than to decline to participate in it." Pet. App. 11a. When the government neither intervenes nor ac tively participates before the district court, it does not conduct the formal institutional decisionmaking process, culminating in a decision by the Solicitor General, that is used to determine whether an adverse district court ruling should be appealed. To be sure, because appel late rulings in declined qui tam cases may announce broadly applicable legal principles that will affect the future enforcement of the FCA, the government often monitors appeals in such cases to determine whether participation by the United States is warranted to pro tect the federal government's interests. When the gov ernment concludes that such participation is appropri ate, however, its practice is to file a brief as amicus cu riae rather than to assert that it possesses party status.5

Consistent with that understanding, the government filed a brief as amicus curiae before the court of appeals in this case. J.A. 18. Moreover, the government has re peatedly participated in such actions as an amicus cu riae-not as a party-before this Court.6 The govern ment has even participated as an amicus curiae at this Court's invitation, see Gov't Cert. Amicus Br., Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997) (No. 95-1340), which suggests that this Court has not heretofore regarded the government as a party to declined qui tam actions.

B. The United States' Status As A Real Party In Interest Does Not Make It A Party To All Qui Tam Actions For Appellate Purposes

Petitioner contends (Br. 17-19) that the United States is a "party" to a declined qui tam suit within the meaning of Rule 4(a)(1)(B) because the government is a real party in interest to this action. Because the govern ment receives the bulk of any monetary recovery in a qui tam suit even when it declines to intervene, peti tioner is correct that the United States is a real party in interest to such actions. That fact, however, provides no basis for finding Rule 4(a)(1)(B) to be applicable here.

Petitioner's argument ignores the distinction be tween a "real party in interest" and a "party" to an ac tion. Federal Rule of Civil Procedure 17(a) requires that "[a]n action must be prosecuted in the name of the real party in interest," which means "the person who, according to the governing substantive law, is entitled to enforce the right." 6A Wright § 1543, at 334 (2d ed. 1990). The term "real party in interest" therefore has a recognized and settled legal meaning, and omission of the term from Rule 4 "cannot be viewed as simply an oversight." Pet. App. 10a.

Moreover, those terms do have different meanings. As petitioner points out (Br. 18), he brought this action as "a partial assign[ee] of the Government's damages claim." Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000). In the case of a partial assignment, "the assignor and assignee each retain an interest in the claim and are both real parties in interest * * * and under Rule 17(a) either party may sue to protect his rights." 6A Wright § 1545, at 351-353 (2d ed. 1990). Petitioner cites no authority for the proposition that a real party in interest who plays no active role in the litigation should be regarded as a "party" to the suit. Petitioner's attempt to equate the two concepts is particularly unavailing in the context of declined qui tam actions under the FCA. Although the government's entitlement to a share of any recovery gave it a tangible interest in the outcome of petitioner's suit, the United States expressly declined to exercise its statutory right to intervene and thereby become a party to the litigation.

C. The FCA's Requirement That A Qui Tam Suit Be Filed In The Name Of The Government Does Not Make The United States A Party To Such Actions For Appellate Purposes

Petitioner further argues (Br. 20-25) that the United States is a "party" to this suit within the meaning of Rule 4(a)(1)(B) because the action was required to be filed in the name of the government. That argument is incorrect for several reasons.

1. Petitioner asserts that "the United States re mains a party to a qui tam action in a literal sense, i.e., its name is on the caption." Br. 20 (quoting Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 302 (3d Cir. 2009)). It is black-letter law, however, that "the caption is not determinative as to the identity of the par ties to the action." 5A Wright § 1321, at 388 (3d ed. 2004); United States v. 99.66 Acres of Land, 970 F.2d 651, 659 n.4 (9th Cir. 1992). In any event, the caption of petitioner's complaint does not identify the United States as a party-plaintiff. It identifies petitioner as the party-plaintiff and the United States as an entity for whose benefit the action is brought: "United States Ex Rel Irwin Eisenstein et al." J.A. 23. Because "bringing a claim on a person's behalf and having that person bring the claim on his or her own are two very different things," Williams v. Bradshaw, 459 F.3d 846, 848 (8th Cir. 2006), the FCA's requirement that a qui tam suit be brought in the name of the United States does not indi cate that the government is a party-plaintiff.7

That is equally true in other contexts, where the United States can be named in the caption even though it is clearly not a party aligned with the plaintiff. See, e.g., Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966) (state prisoner sought writ of habeas corpus against state warden); United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953) (same); Ashe v. United States ex rel. Valotta, 270 U.S. 424 (1926) (same); see also Uni ted States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (alien sought writ of habeas corpus against fed eral officials).8 Accordingly, while the FCA requires a qui tam action to "be brought in the name of the Govern ment," 31 U.S.C. 3730(b)(1), that does not itself make the government a party.

Nor does Federal Rule of Civil Procedure 17 add anything to the analysis. Rule 17(a)(1) requires that "[a]n action must be prosecuted in the name of the real party in interest," but a relator is a real party in inter est. So far as Rule 17(a) is concerned, the relator could bring a qui tam action in its own name without also join ing the United States as the entity for whose benefit the action was brought. The requirement that the govern ment be named in the caption of a relator's complaint is imposed by the FCA, see 31 U.S.C. 3730(b)(1), not by Rule 17(a).

2. Petitioner contends (Br. 21, 23) that the FCA's naming requirement serves an important purpose: it binds the government to the judgment and precludes the government from litigating the same claims against the same defendant in a subsequent suit. It is well-set tled, however, that a nonparty can be bound by a judg ment and precluded from subsequent civil litigation in certain circumstances. See Taylor v. Sturgell, 128 S. Ct. 2161, 2172-2173 (2008) (discussing six exceptions to the rule against nonparty preclusion); Devlin, 536 U.S. at 18 (Scalia, J., dissenting) ("There are any number of per sons who are not parties to a judgment yet are nonethe less bound by it."). For instance, "a nonparty may be bound by a judgment because she was 'adequately rep resented by someone with the same interests who [wa]s a party' to the suit." Taylor, 128 S. Ct. at 2172 (brackets in original) (quoting Richards v. Jefferson County, 517 U.S. 793, 798 (1996)). Accordingly, the government can be bound by the judgment in a qui tam action even when it elects not to become a party, but instead allows the relator to litigate on its behalf.

3. Finally, even assuming that the FCA's naming requirement might otherwise suggest that the govern ment has party status in a declined qui tam suit, that inference is overridden by the clear import of the FCA's text and history taken as a whole. Most importantly, the United States had a statutory right to "intervene" in this case and elected not to exercise that right. The FCA's intervention provisions make clear both that the mere filing of a qui tam complaint does not make the government a party to the suit at its outset and that the choice whether to become a party is left to the United States. See pp. 9-15, supra. This Court should not con clude that Congress, through the oblique method of re quiring the government to be named in the caption, mandated that the United States be treated as a party to this suit notwithstanding its express declination to intervene and its subsequent failure to play any active role in the litigation.

D. The Need For Clarity Does Not Make The United States A Party To All Qui Tam Actions For Appellate Purposes

Petitioner contends that "[o]nly a holding in favor of the 60-day deadline will eliminate confusion" among FCA litigants. Br. 25. That concern is misplaced and should not dictate this Court's interpretation of Rule 4.

1. Petitioner contends (Br. 27) that "a literal reading of the rules militates in favor of the 60-day period." But while Rule 4(a)(1)(B) specifies one consequence that follows when the United States is determined to be a party to a lawsuit, it sheds no light on whether the Uni ted States is a party to a declined qui tam action. If the provisions of law germane to that question are better read to indicate that the United States is not a "party" in these circumstances, there is no basis for this Court to adopt a different interpretation simply because some litigants might misunderstand the law. Petitioner's ar gument logically suggests that, whenever any timing requirement is plausibly susceptible of different inter pretations, courts should adopt the most generous (ra ther than the most persuasive) reading of that require ment. Petitioner cites no authority to support that ap proach.

In any event, the Court's decision in this case will provide a clear rule going forward as to the applicable deadline for filing a notice of appeal in these circum stances. Petitioner contends (Br. 26) that "there will be a trap for the unwary or a likelihood of confusion even following a holding by this Court in favor of the 30-day rule." That argument is based on petitioner's supposi tion that, because the FCA requires the government to be named in the caption of a qui tam complaint, reason able litigants will not perceive the kind of ambiguity as to the notice-of-appeal deadline that would alert them to the need for further research. Of course, if this Court agrees with petitioner that the FCA's naming require ment unambiguously manifests Congress's intent to treat the United States as a "party" to a declined qui tam suit, the Court will presumably find Rule 4(a)(1)(B) applicable here without regard to the likelihood that a contrary ruling would sow confusion. But if the Court finds that inference to be unwarranted, there is no basis for assuming that future litigants will draw it. This Court's decisions on matter such as filing deadlines are not so inconsequential as petitioner's argument sug gests.

2. It is noteworthy is this regard that the courts of appeals have thus far uniformly held that relators may not litigate pro se under the FCA. See United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92-94 (2d Cir. 2008); Timson v. Sampson, 518 F.3d 870, 873-874 (11th Cir.) (per curiam), cert. denied, 129 S. Ct. 74 (2008); Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1127 (9th Cir. 2007), cert. denied, 128 S. Ct. 1728, and 129 S. Ct. 46 (2008); United States ex rel. Brooks v. Lockheed Martin Corp., 237 Fed. Appx. 802, 803 (4th Cir. 2007) (per curiam); United States ex rel. Lu v. Ou, 368 F.3d 773, 775-776 (7th Cir. 2004); United States v. Onan, 190 F.2d 1, 6-7 (8th Cir.), cert. denied, 342 U.S. 869 (1951).9 Petitioner's argument thus de pends on the prediction that relators' counsel will con tinue to be confused as to the applicable deadline for filing a notice of appeal, "even following a holding by this Court in favor of the 30-day rule." Pet. Br. 26.

That seems unlikely, particularly because the 30-day time limit that the court of appeals found applicable here is not an unusually truncated period for filing a notice of appeals, but is the deadline that governs federal civil actions generally. See Fed. R. App. P. 4(a)(1)(A). More over, "filing a notice of appeal is a purely ministerial task," Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), that can be readily accomplished by relators' counsel within the 30-day filing period. Because petitioner failed to file his notice of appeal within the time prescribed by Federal Rule of Appellate Procedure 4(a)(1)(B), the court of appeals correctly held that his appeal was un timely.

CONCLUSION

The judgment of the court of appeals should be af firmed.

Respectfully submitted.

ELENA KAGAN
Solicitor General
MICHAEL F. HERTZ
Acting Assistant Attorney
General
MALCOLM L. STEWART
Deputy Solicitor General
JEFFREY B. WALL
Assistant to the Solicitor
General
DOUGLAS N. LETTER
MICHAEL D. GRANSTON
BENJAMIN M. SHULTZ
Attorneys

MARCH 2009

1 For purposes of the discovery obligations imposed by the Federal Rules of Civil Procedure, the government's decision whether to inter vene in an FCA qui tam suit is not an all-or-nothing choice. Relators often file qui tam complaints that assert multifarious claims, sometimes against a number of defendants. In those circumstances, the govern ment sometimes intervenes to take over the conduct of the suit only with respect to some claims or some defendants, leaving the remaining claims to be prosecuted by the relator. When the government elects that option, it is properly regarded as a "party" for discovery purposes only with respect to the claims as to which it has assumed control over the litigation.

2 To be sure, nothing in the FCA precludes the government from in tervening in a qui tam action when it seeks to dismiss the suit over the relator's objection or to veto a proposed settlement and voluntary dis missal. Once the government has made an initial election "not to pro ceed with the action," however, it has no unqualified right to intervene at a later stage of the case; rather, the district court may "permit the Government to intervene at a later date upon a showing of good cause." 31 U.S.C. 3730(c)(3). Because the government's authority to dismiss a qui tam action, see 31 U.S.C. 3730(c)(2)(A), or to veto a settlement and voluntary dismissal, see 31 U.S.C. 3730(b)(1), is not similarly contingent upon the permission of the district court, the structure of the FCA as a whole suggests that intervention is not a prerequisite to the exercise of those prerogatives. In addition, by authorizing the government "to intervene and proceed with the action," 31 U.S.C. 3730(b)(2), the FCA suggests that the usual consequence of intervention is that the govern ment will thereafter prosecute the suit.

3 The government's status as a party in such circumstances may make no difference to the timeliness of an appeal. When the govern ment asks the district court to grant or deny a motion to dismiss, 31 U.S.C. 3730(b)(1) and (c)(2)(A), or to approve a settlement, 31 U.S.C. 3730(c)(2)(B), appeal is generally taken from the collateral order resolv ing that issue (to which the government would be a party, see Devlin, 536 U.S. at 9-10; id. at 16-17 (Scalia, J., dissenting)), rather than from a judgment on the merits. A court therefore may never have reason to determine whether the government is a party when it exercises such statutory rights.

4 When a nonparty to a lawsuit requests a ruling on a matter col lateral to the merits of the litigation, he may be entitled to appeal a judi cial order denying that request, even though he is not a party to the suit as a whole and would not be entitled to appeal a final judgment. See Devlin, 536 U.S. at 16-17 (Scalia, J., dissenting) (discussing cases); note 3, supra. Under the FCA, the government has certain statutory prero gatives that do not involve directing the disposition of the lawsuit, such as the authority to move to extend the time during which the relator's complaint remains under seal, based on a showing of "good cause." 31 U.S.C. 3730(b)(3). If the government's motion to extend time were de nied on an improper ground, the government would be a party entitled to appeal that collateral order (assuming that order was otherwise ap pealable), but the mere filing of an extension request would not make the government a party to the underlying action or any eventual judg ment on the merits.

5 See, e.g., United States ex rel. Maxwell v. Kerr-McGee Oil & Gas Corp., 540 F.3d 1180 (10th Cir. 2008); United States ex rel. Sanders v. Allison Engine Co., 471 F.3d 610 (6th Cir. 2006), vacated, 128 S. Ct. 2123 (2008); United States ex rel. Atkins v. McInteer, 470 F.3d 1350 (11th Cir. 2006); United States ex rel. Hendow v. University of Phoenix, 461 F.3d 1166 (9th Cir. 2006), cert. denied, 550 U.S. 903 (2007); United States ex rel Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004), cert. denied, 544 U.S. 1032 (2005).

6 See, e.g., Gov't Amicus Br., Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2008) (No. 07-214); Gov't Amicus Br., Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005) (No. 04-169); Gov't Amicus Br., Cook County v. United States ex rel. Chandler, 538 U.S. 119 (2003) (No. 01- 1572). By contrast, the government participated as a party in Stevens because it had intervened pursuant to 28 U.S.C. 2403(a) in order to defend the qui tam provisions of the FCA against constitutional chal lenge. See Gov't Br. at 8 n.6, Vermont Agency of Natural Res. v. Uni ted States ex rel. Stevens, 529 U.S. 765 (2000) (No. 98-1828).

7 Contrary to petitioner's assertion (Br. 23-24 n.14), Federal Rule of Civil Procedure 10 adds nothing to the analysis. Although "[t]he title of the complaint must name all the parties," Fed. R. Civ. P. 10(a), it may also name nonparties for whose benefit the action is brought. Peti tioner cites no authority for the proposition that one party-plaintiff may make another entity an additional party-plaintiff simply by naming it in the title of a complaint.

8 One of petitioner's amici points (TAF Br. 10) to a pair of circuit court decisions holding that the government is a party to actions under the Miller Act, 40 U.S.C. 3133(b), which authorizes subcontractors to bring actions in the name of the United States. It is far from clear that those cases are rightly decided, given that none of the purposes of the 60-day filing period is implicated by the Act. See Blanchard v. Terry & Wright, Inc., 331 F.2d 467, 469-470 (6th Cir.) (holding that "[t]he in terest of the United States was merely nominal" under the Miller Act and that "[t]he use plaintiffs were the real parties in interest"), cert. denied, 379 U.S. 831 (1964). In any event, there is no reason to look to the seldom-litigated Miller Act in interpreting the oft-litigated FCA. That is particularly so because the Miller Act contains no analogue to the FCA provisions that allow the government to elect whether to "in tervene" in a particular suit.

9 Petitioner was proceeding pro se at the time that he filed his notice of appeal. The court of appeals ultimately requested supplemental briefing on two issues: (i) whether petitioner's notice of appeal was timely and (ii) whether petitioner was entitled to proceed pro se. J.A. 11-12. The court appointed counsel for petitioner only for the pur pose of briefing those issues. J.A. 14. Because the court dismissed the appeal as untimely, it did not reach the issue of whether petitioner could proceed pro se.