06-3329-cv

United States v. City of New York, et al.

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2007

4 (Argued: June 24, 2008 Decided: August 19, 2008)

5 Docket No. 06-3329-cv

6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

7 UNITED STATES OF AMERICA, ex rel. IRWIN EISENSTEIN, 

8 Plaintiff-Appellant,

9 - v. -

10 CITY OF NEW YORK, MICHAEL BLOOMBERG, JOHN DOE, JANE DOE,

11

12 Defendants-Appellees.

13

14

15 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

16

17 B e f o r e: WINTER, MINER, and CABRANES, Circuit Judges. 

18 Motion to dismiss an appeal from the dismissal of a

19 complaint by the United States District Court for the Southern

20 District of New York (Deborah A. Batts, Judge). Appellant

21 brought a False Claims Act qui tam action in the name of the

22 United States. Appellant filed a notice of appeal more than 30

23 days after the dismissal. Appellees move to dismiss the appeal

24 as untimely, arguing that because the United States is not a

25 party, the notice of appeal was required to have been filed

26 within 30 days of final judgment, Fed. R. App. P. 4(a). The

27 motion to dismiss is granted. 
2

1 LEWIS D. ZIROGIANNIS (Marc A. Weinstein on

2 the brief), Hughes Hubbard & Reed LLP, New

3 York, New York for Plaintiff-Appellant.

4

5 ANDREW G. LIPKIN, of counsel (Michael A.

6 Cardozo, Corporation Counsel of the City of

7 New York) New York, New York for Defendant8 Appellees.

9

10 Michael J. Garcia, United States Attorney for

11 the Southern District of New York (Sheila M.

12 Gowan and Jeffrey S. Oestericher, Assistant

13 United States Attorneys, on the brief) New

14 York, New York, for amicus curiae, the United

15 States of America.

16

17

18

19 WINTER, Circuit Judge:

20 Irwin Eisenstein appeals from the dismissal of his complaint

21 by Judge Batts. The City of New York has moved to dismiss the

22 appeal, asserting that the notice of appeal was untimely. The

23 issue is whether a private party bringing a False Claims Act qui

24 tam action must file a notice of appeal within the 30 days after

25 judgment applicable to civil actions generally, Fed. R. App. P.

26 4(a)(1)(A), or within the 60 days applicable when the United

27 States is a party, Fed. R. App. P. 4(a)(1)(B). We hold that,

28 where the United States has declined to intervene in a False

29 Claims action, the United States is not a party to the action

30 within the meaning of Rule 4(a)(1), and, therefore, a notice of

31 appeal must be filed within 30 days. Because Eisenstein filed

32 his notice of appeal more than 30 days after the entry of

33 judgment, his appeal is untimely, and we are without jurisdiction
Our decision in United States ex rel Mergent Services and 1

John Bal, , filed this day, holds that

pro se litigants may not pursue qui tam actions under the False

Claims Act. That principle would also bar this suit, but we

would have to have appellate jurisdiction in this matter to reach

that issue. Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94 (1998) (“Without jurisdiction the court cannot proceed at

all in any cause.” (quoting Ex parte McCardle, 74 U.S. 506, 514

(1868)). 

The False Claims Act imposes civil liability upon “any 2

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). Defendants may be liable for

treble damages and a civil penalty of up to $10,000 per claim. 

Id. 

3

1 to consider it. 

1

2 On January 17, 2003, Eisenstein and four City employees,

3 proceeding pro se, filed this action against the City and various

4 municipal officials. The gravamen of the complaint is that it is

5 unlawful for the City, as a condition of employment, to require

6 non-resident City-employees to pay a fee equivalent to the

7 municipal income taxes paid by resident City-employees. The

8 complaint alleges that this practice is actionable under various

9 theories of liability, most notably as a violation of the False

10 Claims Act, 31 U.S.C. §§ 3729-3733. Eisenstein contends that 2

11 because non-resident employees are able to deduct this fee as an

12 expense for federal income tax purposes, their taxable income is

13 less than it might otherwise be, and in this way, the City is

14 depriving the federal government of tax revenue. The complaint

15 initiates a qui tam action, in which the plaintiffs are to serve
An action brought under the False Claims Act may be 3

commenced in one of two ways. First, the federal government

itself may bring a civil action against a defendant. 31 U.S.C. §

3730(a). Second, as is the case here, a private person, or

“relator” may bring a qui tam action “for the person and for the

United States Government,” against the defendant, “in the name of

the Government.” Id. § 3730(b)(1). Under such circumstances,

the Government may elect to intervene, and if it recovers a

judgment, the relator gets a percentage. See id. § 3730(d)(1). 

If the Government declines to intervene, the relator may pursue

the action on his own, and may get a larger percentage of the

judgment if he prevails. See id. § 3730(d)(2); United States v.

Baylor Univ. Med. Ctr., 469 F.3d 263, 265 (2d Cir. 2006).

The only notice of appeal specifies that Eisenstein is 4

appealing the judgment of the district court. See Fed. R. App.

P. 3(c)(1)(A) (requiring that the notice of appeal “specify the

party or parties taking the appeal by naming each one in the

caption or body of the notice”). Therefore, he is the only

appellant. 

4

1 as relators, suing the City in the name of the United States. 

2 The United States declined to intervene.3

3 The City moved to dismiss the complaint for failure to state

4 a claim. On March 31, 2006, the district court granted the

5 motion to dismiss, and, on April 12, 2006, rendered final

6 judgment for the City. On June 5, 2006, or 54 days later,

7 Eisenstein filed his notice of appeal. 

4

8 On December 26, 2006, we ordered Eisenstein and the City “to

9 brief the issue of whether the thirty-day time limit for filing a

10 notice of appeal . . . or the sixty-day time limit for filing a

11 notice of appeal . . . , which applies when the United States is

12 a party, applies to a qui tam action where the United States
That brief urges us to apply the 30 day rule of Fed. R. 5

App. P. 4(a)(1)(A).

5

1 declines to intervene in the proceedings.” United States ex.

2 rel. Eisenstein v. City of New York, No. 06-3329 (2d Cir. Dec.

3 26, 2006). We also ordered the United States to brief this issue

4 as amicus curiae. On January 25, 2007, the City filed the

5 present motion to dismiss, based on, inter alia, the timeliness

6 issue. Thereafter, we appointed pro bono counsel for Eisenstein,

7 solely to address the City’s motion to dismiss.

8 The government played no role in this litigation until

9 filing an amicus brief as ordered by the court. Because we 5

10 conclude that the United States is not a “party” to this action

11 for the purposes of Fed. R. App. P. 4(a)(1)(A) and (B), we

12 further conclude that Eisenstein’s notice of appeal was untimely. 

13 We are therefore without jurisdiction, and the City’s motion is

14 granted.

15 “[I]n a civil case, . . . the notice of appeal . . . must be

16 filed with the district clerk within 30 days after the judgment

17 or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A);

18 see 28 U.S.C. § 2107(a) (prescribing that “no appeal shall bring

19 any judgment . . . of a civil nature before a court of appeals

20 for review unless notice of appeal is filed, within thirty days

21 after the entry of such judgment”). However, “[w]hen the United

22 States or its officer or agency is a party, the notice of appeal
“Compliance with Rule 4(a) is ‘mandatory and 6

jurisdictional.’” Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411,

415 (2d Cir. 2004) (quoting Browder v. Director, Dep’t of Corr.,

434 U.S. 257, 264 (1978)). That is, “[i]f a notice of appeal is

filed beyond the period allowed by [Rule 4(a)], the court of

appeals lacks subject matter jurisdiction to hear the appeal.” 

Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56

(2d Cir. 1997).

6

1 may be filed by any party within 60 days after the judgment or

2 order appealed from is entered.” Fed. R. App. P. 4(a)(1)(B); see

3 28 U.S.C. § 2107(b) (providing that “[i]n any [civil] action 

4 . . . in which the United States or an officer or agency thereof

5 is a party, the time as to all parties shall be sixty days from

6 such entry”). The term “party” is not expressly defined for

7 these purposes by either statute or the appellate rules.6

8 When interpreting a rule of procedure, we review the text

9 for its “plain meaning.” Cooter & Gell v. Hartmarx Corp., 496

10 U.S. 384, 391 (1990); see also United States v. Capoccia, 503

11 F.3d 103, 109 (2d Cir. 2007). To the extent that the text is

12 ambiguous, we seek to determine the intent by looking to other

13 materials, such as the Advisory Committee Notes that often

14 accompany the rules. See Sorensen v. City of New York, 413 F.3d

15 292, 296 (2d Cir. 2005).

16 In the present case, the language of Rule 4(a)(1)(B) does

17 not support Eisenstein’s contention that he was entitled to file

18 his notice of appeal within 60 days of the rendering of judgment. 

19 The text of Rule 4(a)(1)(B) states that the extended filing
7

1 period applies when the United States is a “party” to the action. 

2 We hold that the United States is not a “party” to this action

3 for the purposes of the deadline for filing a notice of appeal.

4 In our view, the United States is not a party for these

5 purposes to a qui tam action when the government fails to

6 intervene or to raise or resist any legal claim. Where a private

7 person brings suit under the False Claims Act, the Act allows the

8 government “to intervene and proceed with the action within 60

9 days after it receives both the complaint and the material

10 evidence and information.” 31 U.S.C. § 3730(b)(2). Before that

11 60-day period expires, the Act mandates that the government carry

12 out one of two choices: “(A) proceed with the action, in which

13 case the action shall be conducted by the Government; or (B)

14 notify the court that it declines to take over the action, in

15 which case the person bringing the action shall have the right to

16 conduct the action.” Id. § 3730(b)(4). While the Act allows the

17 Government to intervene at a later date, it may do so only upon a

18 showing of good cause. Id. § 3730(c)(3). When the Government

19 declines to intervene, the Act specifies that the person who

20 brought the suit has the “right to conduct the action.” See id.

21 § 3730(c)(3). Absent a specific request, the government need not

22 be served with the pleadings thereafter filed by litigants. Id.

23 § 3730(c)(3). Moreover, the United States “is not liable for

24 expenses which a person incurs in bringing an action under” the
8

1 Act, id. § 3730(f), notwithstanding the fact that the claim is

2 that of the United States and that such actions are brought in

3 the name of the United States. See 31 U.S.C. § 3730(b); see also

4 Vermont Agency of Natural Res. v. United States ex rel. Stevens,

5 529 U.S. 765, 774 (2000) (describing claims under the Act as

6 belonging to the United States). And while under the Act, the

7 government must consent to any settlement that would call for the

8 dismissal of a qui tam action, see id., this is surely a sensible

9 requirement, inasmuch as the United States, is the “real party in

10 interest,” and is otherwise bound by the relator’s actions for

11 purposes of res judicata and collateral estoppel. See Stoner v.

12 Santa Clara County Office of Educ., 502 F.3d 1116, 1126 (9th Cir.

13 2007).

14 These provisions indicate that the United States is not a

15 party to litigation for all purposes brought by private persons

16 under the Act, absent an election to intervene. As used in Rule

17 4(a)(1), the word “party” refers to the person participating in

18 the proceedings with control over litigation. The government,

19 once having declined to intervene at the outset of an action may

20 not participate in it, save for asking that it be served with

21 pleadings and for approving any withdrawal with prejudice,

22 without moving to intervene upon a showing of good cause. The

23 inability to participate without moving to intervene is simply

24 not consistent with the principal characteristics of being a

25 party to litigation. 
9

1 Eisenstein argues that the extended 60-day filing period

2 applies here because the United States is a “real party in

3 interest” in False Claims Act qui tam actions. See United States

4 ex rel. Stevens v. Vt. Agency of Natural Res., 162 F.3d 195, 202

5 (2d Cir. 1998), rev’d on other grounds, 529 U.S. 765 (2000). 

6 This argument assumes that the United States’ status as a “real

7 party in interest” is equivalent to the status of a “party” to

8 litigation as contemplated by the drafters of Rule 4(a). We find

9 this assumption faulty. “Generally, the ‘real party in interest’

10 is the one who, under the applicable substantive law, has the

11 legal right which is sought to be enforced or is the party

12 entitled to bring suit.” In re Comcoach Corp., 698 F.2d 571, 573

13 (2d Cir. 1983). The litigation status of a real party in

14 interest and a “party” to litigation may overlap for some

15 purposes while being quite distinct for others. See, e.g.,

16 Arkwright-Boston Mfrs. Mut. Ins. Co. v. New York, 762 F.2d 205,

17 209 (2d Cir. 1985) (concluding it was not error to fail to join a

18 real party in interest as a plaintiff to a diversity action). 

19 Indeed, the term “real party in interest” exists only to

20 distinguish the litigation interests it covers from those of a

21 “party” who is the person responsible for prosecuting the action.

22 The use of the “real party in interest,” as a term of art,

23 permits courts to intelligibly discuss those instances in which

24 an individual with a substantive right must appear as a party to

25 litigate a claim, and those instances in which another may appear
10

1 in his stead. Compare Local Union No. 17 v. Mason & Hanger Co.,

2 217 F.2d 687, 691-95 (2d Cir. 1954) (concluding that a union was

3 not entitled under the Labor Management Relations Act to bring a

4 civil conspiracy claim on behalf of its members, the real parties

5 in interest), with Blau v. Lamb, 314 F.2d 618, 619-20 (2d Cir.

6 1963) (providing that the real party in interest, a corporation,

7 need not be the one to bring a claim under Section 16(b) of the

8 Securities Exchange Act of 1934). Accordingly, the United

9 States’ status as a real party in interest is by itself

10 insufficient to trigger the 60-day filing period.

11 The failure of Rule 4(a)(1)(b)’s language to include

12 situations in which the United States is a “real party in

13 interest” in an action cannot be viewed as simply an oversight. 

14 The term “real party in interest” is a term of art used in the

15 rules of procedure. See Fed. R. Civ. P. 17(a)(1) (requiring that

16 actions be brought in the name of the “real party in interest”);

17 Fed. R. Civ. P. 15 Notes of Advisory Committee on 1966 amendments

18 (noting that under the rules, there is mechanism for correcting a

19 failure to name the “real party in interest” to an action). We

20 therefore regard the omission of “real party in interest” from

21 Rule (a)(1)(B) as meaningful. 

22 We turn now to the intent underlying Rule 4(a)(1)(B). The

23 purpose of providing a 60-day filing period, rather than the

24 usual 30 days, is to account for the slow machinery of government

25 when the United States is a party responsible for prosecuting the
This rationale applies with respect to Rule 4(a)(1)(B), 7

which is derived from the former Rule 73(a) “without any change

of substance.” Fed. R. App. P. 4 Notes of Advisory Committee on

1967 Adoption of Subdivision (a).

11

1 action. “The Advisory Committee’s Notes of 1946 to Rule 73(a) of

2 the Federal Rules of Civil Procedure, the predecessor of Rule

3 4(a), explain that the government’s institutional decisionmaking

4 practices require more time to decide whether to appeal and that

5 in fairness, the same time should be extended to other parties in

6 a case in which the government is a party.” United States ex

7 rel. Russell v. Epic Healthcare Mgmt. Group, 193 F.3d 304, 306

8 (5th Cir. 1999) (citing 20 Moore’s Federal Practice § 304.11[2]

9 (3d ed. 1997)). This rationale is obviously inapplicable to the 7

10 present case, where the government has played no part in the

11 underlying litigation other than to decline to participate in it.

12 Our decision is not inconsistent with United States v.

13 American Society of Composers, Authors & Publishers, 331 F.2d 117

14 (2d Cir. 1964). In American Society of Composers, we applied the

15 60-day limit, but only because the United States actively

16 participated in the litigation. In that matter, several

17 television stations sought an order requiring the licensing of

18 the rights to use various musical compositions, rights that were

19 held by the American Society of Composers, Authors and Publishers

20 (the “Society”). Am. Soc’y of Composers, 317 F.2d 90, 91 (2d

21 Cir. 1963). The stations sought these licenses purportedly

22 pursuant to a consent decree entered in a previous action brought
12

1 by the United States against the Society under the Sherman Act. 

2 Id. The government actively participated in the ensuing

3 litigation, weighing in on the justiciability of the stations’

4 claims before the district court, 208 F. Supp. 896, 897 (S.D.N.Y.

5 1962), and on appeal, 331 F.2d at 120.

6 When a dispute arose as to the timeliness of an appeal

7 raising issues that pertained only to the claims brought by the

8 television stations and the Society and not to the antitrust

9 claims of the United States resolved in the consent decree, id.

10 at 119-20, we interpreted the predecessor to Rule 4(a) and

11 concluded that the 60-day filing period applied. In doing so, we

12 relied on the text of the former rule, which provided a 60-day

13 period to file an appeal in any action “in which the United

14 States or an officer or agency thereof is a party.” Id. at 119

15 (citing the former Fed. R. Civ. P. 73(a)). Because the rule

16 required only that the United States be a party for the 60-day

17 period to apply, we rejected the notion that this longer filing

18 period was triggered only when the United States had a particular

19 interest in the outcome of the appeal. Am. Soc’y of Composers,

20 331 F.2d at 119. In so doing, we cautioned that it is

21 “undesirable to read into a procedural statute or rule, fixing

22 the time within which action may be taken, a hidden exception or

23 qualification that will result in the rights of clients being

24 sacrificed when capable counsel have reasonably relied on the

25 language.” Id.
13

1 This sound principle is entirely consistent with our ruling

2 today. Rather than establishing filing deadlines based on the

3 nature of, or interests in, the claims asserted on appeal, we

4 look, as we did in American Society of Composers, to the plain

5 requirements of the rules, which call for a determination of

6 whether the United States was a party in the district court. 

7 That is, what is of import is neither that Eisenstein brought a

8 False Claims Act claim in the name of the United States, nor that

9 the United States may be entitled to a portion of the recovery if

10 Eisenstein prevails; what is of import is that the United States

11 played no role in this matter before the district court.

12 We do note that our holding in this matter puts us in

13 conflict with three of four courts of appeals that have

14 considered this issue. See United States ex rel. Lu v. Ou, 368

15 F.3d 773, 775 (7th Cir. 2004) (applying the 60-day limit); United

16 States ex rel. Russell v. Epic Healthcare Mgmt. Group, 193 F.3d

17 304, 308 (5th Cir. 1999) (same); United States ex rel. Haycock v.

18 Hughes Aircraft Co., 98 F.3d 1100, 1102 (9th Cir. 1996) (same);

19 compare United States ex rel. Petrofsky v. Van Cott, Bagley,

20 Cornwall, McCarthy, 588 F.2d 1327, 1329 (10th Cir. 1978) (per

21 curiam) (applying the 30-day limit). Specifically, in Hughes

22 Aircraft, the Ninth Circuit concluded that in False Claims Act

23 qui tam cases, the application of the 60-day period was required

24 under a “literal interpretation” of Rule 4(a), and that such an
14

1 interpretation was called for in the interest of affording would2 be appellants the ability “to figure out which time period

3 applies, easily, without extensive research, and without

4 uncertainty.” Hughes Aircraft Co., 98 F.3d at 1102. Confronted

5 with this same issue, the Fifth Circuit has since adopted the

6 Ninth Circuit’s reasoning from Hughes Aircraft. See Epic

7 Healthcare Mgmt. Group, 193 F.3d at 308.

8 We are not similarly persuaded. As discussed in detail

9 supra, we do not agree that a “literal” reading of Rule 4(a)

10 accords a 60-day filing period to private individuals who bring

11 suit in the name of the United States. Nor do we share the fear

12 of other courts that confusion may result from applying Rule

13 4(a)(1)(B) in the manner we do today. In the circumstances

14 described, counsel of minimal competence will take pause upon

15 reading Rule 4(a) to consider whether the United States was

16 actually a “party” to the action. Even if doubt existed, any

17 reasonable counsel would allay these concerns by sensibly filing

18 a notice of appeal within 30 days. In fact, there is little

19 history of confusion, and, even with this decision, the issue has

20 not arisen in the majority of circuits despite the many decades

21 in which the provisions of Rule 4(a)(1)(B) and False Claims Act

22 qui tam actions have coexisted.

23 We are similarly not persuaded by the reasoning employed by

24 the Seventh Circuit in United States ex rel. Lu v. Ou. In
15

1 addition to reciting the grounds relied upon by the Ninth and

2 Fifth Circuits in Hughes Aircraft and Epic Healthcare, the

3 Seventh Circuit appears to have concluded that the United States

4 must be a party to qui tam actions because relators by themselves

5 lack standing to sue. Ou, 368 F.3d at 775. Respectfully, we

6 believe this reasoning cannot be reconciled with the Supreme

7 Court’s decision in Vermont Agency of Natural Resources v. United

8 States ex. rel. Stevens, 529 U.S. 765 (2000).

9 In Stevens, the Supreme Court specifically identified the

10 source of relator-standing in False Claims Act qui tam actions,

11 concluding that relators have standing to sue not as agents of

12 the United States, but as partial-assignees of the United States’

13 claim to recovery. Stevens, 529 U.S. at 773-74. This is so even

14 where the assignor, the United States, declines to intervene in

15 the case. See id. at 770 (noting the Government’s failure to

16 intervene). According to Stevens, relators have standing in

17 their own right, id. at 773-74, and, therefore, if they otherwise

18 comply with the requirements of the False Claims Act, they can

19 bring an action in the name of the United States without the

20 United States appearing as a party and participating in the

21 litigation. 

22 Ultimately, we are more inclined to agree with the views of

23 the Tenth Circuit, the first court of appeals to have taken up

24 this issue. See Van Cott, 588 F.2d at 1329. In Van Cott, as in
16

1 the present case, the government declined to intervene in a qui

2 tam action, and, as a result, a relator pursued a False Claims

3 Act claim on his own. Id. at 1328. Under such circumstances,

4 the Tenth Circuit properly characterized the United States’

5 participation in the case as “tangential or nominal,” and soundly

6 recognized that it “was merely a statutory formality” that the

7 relator brought the suit in the name of the United States. Id.

8 at 1329. We also agree with its observation that, under such

9 circumstances, “[a]ll parties [are] aware the government [has]

10 disclaimed any participation in the suit” and that there is no

11 “need for more than the usual 30 days to make the appeal.” Id.

12 We therefore grant the City’s motion to dismiss. 

13