COCHISE CONSULTANCY, INC., ET AL. , Petitioners, v. UNITED STATES, EX REL. BILLY JOE HUNT, Respondent
Interviewer(s): Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Theodore J. Boutrous Jr., Earl N. Mayfield III, Matthew Guarnieri

John G. Roberts, Jr.: We'll hear argument this morning in Case 18-315, Cochise Consultancy versus the United States, ex rel. Billy Joe Hunt. Mr. Boutrous.

Theodore J. Boutrous Jr.: Mr. Chief Justice, and may it please the Court: The Eleventh Circuit held that a relator who waited seven years to file suit after witnessing an alleged fraud against the United States Government was entitled to rely on the equitable tolling principle, the discovery rule, that is established by Section 3731(b)(2) of the False Claims Act, even though the government declined to intervene in the suit. Under this approach, a relator could conceal from the United States and could wait to sue for a decade and still take advantage of the principle of equitable tolling.

This reading of Section 3731(b)(2) contradicts this Court's interpretive approach in the Graham case, it defies default tolling rules, and it would produce counterintuitive results that Congress cannot possibly have intended. Let me begin with the text.

In this Court's decision in Graham, interpreting the False Claims Act, it held that these provisions must be interpreted in context, not in isolation.

And, in particular, it -- it focused on the language under -- under Section 3730, which is contained in Section 3731(b)(2). And, here, the statutory context confirms that that language, "action under Section 3730," as incorporated into subsection (b)(2), is limited to those actions where the United States is a party, either because it's intervened or it filed a complaint. And Graham said --

Ruth Bader Ginsburg: Isn't the United States in some sense a party even if it hasn't intervened? After all, it's going to get the lion's share of the recovery, and, if I understand correctly, it -- the suit can't be dismissed without notice and -- and approval by the United States.

Theodore J. Boutrous Jr.: The government does have certain rights, Your Honor, when it does not intervene, but it is not a party.

This Court held that in Eisen -- the Eisenstadt case.

And -- and the -- the key here, Your Honor, is, if we look at the text of the statute, it -- there are multiple textual cues. The first are that the provision, Section 3731(b)(2), only refers to the United States.

And the statute refers to relators and the United States separately throughout.

But it only refers to the United States. And as Judge Wilkinson in the Sanders case from the Fourth Circuit noted, it makes no sense to apply this tolling provision to a relator where the United States is not involved.

The language is that the knowledge of the official of the United States charged with responsibility to act in the circumstances triggers the statute of limitations. So knowledge of a third party that's not a party to the case would somehow put the plaintiff who's -- who's the -- the relator, who's not an injured party, on notice that there's a claim, it could start the clock ticking without the relator even knowing it.

Neil Gorsuch: Mr. Boutrous, I understand your argument that a non-intervention case is not a civil action under Section 3730 for purposes of (b)(2).

And the arguments you've just given us, I -- I -- I -- I acknowledge those and -- and your response to Justice Ginsburg. But I believe you still take the position that the very same case is a civil action under 3730 for purposes of (b)(1).

And so you'd have us interpret that introductory language to (b) in two different ways, one for (b)(1) and the other for (b)(2).

How do we manage that? That's quite a feat, don't you think?

Theodore J. Boutrous Jr.: Yeah, I don't think it's -- it's difficult at all, Your Honor, and in -- in Graham, the Court said that --

Neil Gorsuch: But Graham -- let -- let -- sorry to interrupt you there.

Theodore J. Boutrous Jr.: Yes.

Neil Gorsuch: But I just put my cards on the table so you can -- you can play them as you wish.

In Graham, we held that retaliation claims just simply aren't covered by this provision at all, and they don't qualify under that introductory language for either purposes of (b)(1) or (b)(2). Here, you're asking us to split the baby, as it were.

And we normally don't read the same language to mean two different things. And I believe that's the problem you face that we did not face in Graham.

Theodore J. Boutrous Jr.: Well, actually, Your Honor, in Graham, that exact issue was presented.

The Court said, in discussing Section 3731(d), which at the time was subsection (c), that the language "action brought under Section 3730" meant only actions brought under the United States in that provision. And the Court said it was the -- basically the exact same language in Section 3731(b)(1), which is what the Court was talking about.

The Court said that Congress spoke imprecisely, used the term "actions under Section 3730" imprecisely, and it sometimes used that phrase to refer to only a subset of actions under Section 3730. And in interpreting Section -- subsection (d), it said that subset were actions only involving the United States. That's exactly what we're arguing here. So -- and the Court has, Your Honor, in many instances interpreted the same phrase in a statute to mean different things.

In the Utility Regulatory Air case, for example, the Court said you have to look at what is the language doing in a particular provision.

How is it interacting with the other provisions? Here, section -- subsections (b)(1) and (b)(2) are very different provisions.

It's not like just a word following a defined term; (b)(1) is triggered by a violation of Section 3729.

Neil Gorsuch: But just so I understand your argument, and we can -- we can put it in a nutshell and then you can move on, you read that language, a civil action under 3730, to mean cases where there's no intervention when we come to (b)(1) but not (b)(2), is that right?

Theodore J. Boutrous Jr.: In -- in (b)(2), we read it to mean there -- yes, that's correct, Your Honor.

Neil Gorsuch: Yeah.

Theodore J. Boutrous Jr.: That there must be intervention under (b)(2).

In Section (b)(1) --

Neil Gorsuch: So -- so the United States is a party for purposes of (b)(1) but not (b)(2) --

Theodore J. Boutrous Jr.: It -- (b) --

Neil Gorsuch: -- put differently?

Theodore J. Boutrous Jr.: -- (b) -- (b)(1) does not refer -- does not distinguish between the United States and the relator.

Neil Gorsuch: Right.

Theodore J. Boutrous Jr.: (b)(2) does.

It specifically calls out the United States.

And -- and the statute of limitations is triggered based on the knowledge of the official of the United States charged with responsibility to act under the circumstances.

Elena Kagan: Does -- does that mean, Mr. Boutrous, that the statute of limitations can change in the middle of the lawsuit if the government decides to intervene?

Theodore J. Boutrous Jr.: It doesn't change, Your Honor.

For a relator, the statute of limitations would be six years after the violation occurred, and -- and that would end it.

For the United States, if the relator, for example, sued and -- on -- on its own and the government didn't intervene and it was more than six years, the claim would be barred. But that doesn't mean the statute of limitations is changing.

The United States would still have the opportunity to intervene and, if it -- if the official charged with responsibility to act had learned less than three years after -- before the filing of the suit, the claim would be timely.

So the statute of limitations stays the same.

I don't think it's at all complicated. But think of the reverse.

Here, equitable tolling -- and this goes to the default rules.

Equitable tolling is meant to protect the injured party who's seeking recompense.

That's what the Court said in Gabelli, where it's talking about civil enforcement penalties brought -- sought by the SEC.

And -- and this Court said it had never applied equitable tolling or the discovery rule where the government is seeking penalties and not seeking compensation for itself. That's what the relator is doing here.

Sonia Sotomayor: But you see, the problem I have is that I know that it appears to give the relator more of a statute of limitations than the government, but, if you look at this statute more broadly, which is that its purpose is to ensure that when some fraud has occurred against the U.S., that there is recovery for the United States, and the qui tam actions, whether it's the relator or the U.S. prosecuting it, the recovery in bulk, as Justice Ginsburg mentioned, goes to the government. So there is a purpose to this and one that makes logical sense, which is why should it matter that it's the government's knowledge that is at issue when it's the government who stands to benefit from a longer statute of limitations?

Theodore J. Boutrous Jr.: Well, the -- Your Honor, the government would benefit from the longer statute of limitations.

It would have the opportunity to --

Sonia Sotomayor: No, but you're forcing it to do something that the statute clearly doesn't want to force the government to do, which is you're forcing it to step into the shoes of the relator, but the statute clearly gives the government the option not to. And you're saying read this in a way that forces the government to do it.

Theodore J. Boutrous Jr.: Well, it wouldn't be forced, Your Honor.

It would consider the fact that the claim would be rendered untimely as part of the suite of factors it normally would consider. Here, the government was not forced into filing -- intervening.

It decided that based on its evaluation of the merits and of cost and other factors it wouldn't do that. But it -- Your Honor, there's -- it's not just the recovery for the government.

It's rapid exposure of fraud. Congress and this Court said it way back when in the Marcus versus Hess case, the False Claims Act was meant to spur rapid ferreting out of fraud by privateers or bounty hunters or people who were on the scene.

This would do the opposite. So it's inconsistent with the purposes of the False Claims Act and with the purpose of statutes of limitations, which are meant --

Sonia Sotomayor: Well, no longer, because, in 1996, Congress made one of the factors relevant to how much a relator recovers whether they were dilatory in bringing the action. I know that has little to do with the original interpretation, but that's not a consequence today.

Theodore J. Boutrous Jr.: But --

Sonia Sotomayor: There's still a direct incentive.

Theodore J. Boutrous Jr.: -- it can have an effect.

And I think one of the cases that was cited by the other side showed that there was a modest reduction. But the -- the principle here that a relator, for example, Mr. Hunt waited seven years, and one of the cases that creates the conflict that brings us here was eight or nine years.

It is so contrary to the very essence of equitable tolling to allow someone to lie in the weeds and conceal from the United States --

John G. Roberts, Jr.: Well, that's -- that's really more of an academic concern. The relators, for example, they know if they don't move promptly, another relator might preempt them.

They know that if they don't move promptly, the government itself might find out before they have a chance to file, and that would preempt their action as well. The -- the theory of a relator just sort of, as you say, waiting in the weeds I think is not a realistic one.

Theodore J. Boutrous Jr.: Well, Your Honor, that -- this case proves the opposite.

It's not academic.

Here, the relator waited seven years.

In other cases, in the Sanders case, I think it was seven or eight years. But think of it this way: If a relator's case is baseless, if it's a concocted claim, if it can -- if it's a meritless claim, those incentives about moving quickly don't spark the relator to do anything. They're better off just waiting, letting damages that they're going to claim pile up, treble damages, and there they -- they can amass whatever evidence they have while the defendant has no idea that someone is going to bring this claim.

Ruth Bader Ginsburg: But you just -- you just -- you prefaced this by saying if the claim is baseless.

So none of that is going to happen if the claim is baseless.

Theodore J. Boutrous Jr.: Well, but -- but, Your Honor, these False Claims Act, I think the amicus briefs demonstrate, they do present a problem potentially of abuse, and -- and throughout history, qui tam actions have created such problems.

I'm not saying they all are. But what I am saying is that the incentives don't necessarily cause people to file quickly, as this case and many others demonstrate.

Brett M. Kavanaugh: You're --

Theodore J. Boutrous Jr.: But the point is, even if the incentives are -- there are incentives there, this is another thing that a relator could consider.

They can wait. That's flatly contrary to equitable tolling, and that's the background rule that Congress was thinking of.

Brett M. Kavanaugh: You're not arguing that it would be absurd to read it as Respondent and the Solicitor General read it?

Theodore J. Boutrous Jr.: We are not.

We are arguing that it's counterintuitive, just like the rule in Graham that was rejected.

Brett M. Kavanaugh: Counterintuitive, Congress likely did not mean what it said, it seems to be what you're suggesting?

Theodore J. Boutrous Jr.: No, Your Honor.

We mean that Congress did mean what it said, that where the United States official who's charged with responsibility for filing a timely action, when the government --

Ruth Bader Ginsburg: Except it didn't say that.

It has a statute.

It says civil action.

And then it says, one, or two, whichever is later, and makes no distinction in the text between the United States stepping in as intervenor or the qui tam plaintiff going it alone.

Theodore J. Boutrous Jr.: Justice Ginsburg, I think we crossed that bridge in Graham, the fact that -- that that language --

Ruth Bader Ginsburg: But Graham was -- Graham was a retaliation claim.

And there it was a case where, to bring a retaliation claim, you don't have to prove there was any fraud at all, just that you were retaliated against, and the retaliation could occur after the statute of limitations ran. So that, if there are absurd results, it seems to me that would -- would fit, that you don't even have a claim that you can sue on until the statute of limitations has already run.

Theodore J. Boutrous Jr.: That was one aspect of Graham.

But the way the Court got there -- and the dissent in Graham did not think it was an absurd position.

That it was counterintuitive is what the majority said. But, Your Honor, it -- Graham didn't just talk about the retaliation provision, subsection (h).

It talked about 3731(d) that provides in an action under Section 30 -- brought under Section 3730, the United States must prove the elements by a preponderance of the evidence. And the Court held that that provision only applied to actions brought by the United States or where they intervened, even though it was even broader.

It said any action under Section 3730. And the Court held that Congress was imprecise.

It's not that they didn't mean what they said.

They were imprecise when they --

Brett M. Kavanaugh: Why is this imprecise? It seems very clear.

Now you then argue it doesn't make a ton of sense in terms of the policy objectives, tolling principles, I -- I get all that, but it -- it seems very clear as written.

Theodore J. Boutrous Jr.: Well, Your Honor, I think that, one, we have to -- it's -- it's -- it's -- you can only interpret the statute by understanding or viewing the language "action under Section 3730" as appearing in both provisions. It really does.

It can't be that the decision turns on the fact that, as a drafting technique, Congress said it once and it goes into two very different provisions. So, when we get to Section 3731(b)(2), the question is, which actions is Congress talking about? And the fact -- it's not that it didn't mean what it said.

But it was imprecise in the sense that it didn't button down absolutely clearly that a relator couldn't take advantage of that provision. But everything else -- common sense, logic, the structure of the provision, the -- the -- the derivation of the --

Neil Gorsuch: Let's talk about common sense.

Brett M. Kavanaugh: What do you do --

Neil Gorsuch: Oh, I'm sorry.

Brett M. Kavanaugh: Go ahead.

Neil Gorsuch: No, please.

Brett M. Kavanaugh: Go ahead. (Laughter.)

Neil Gorsuch: All right.

All right.

Your question is probably better than mine. (Laughter.)

Neil Gorsuch: This common sense we keep coming back to, I -- I guess I'm struggling to get my head around it. Congress, you suggest, wants to encourage relators to act quickly, but it has a number of other tools for ensuring that, as the Chief Justice pointed out. And, in any event, it really boils down to these last three years, seven through ten, and whether Congress would have thought that we want relators to -- we want to outsource work to relators years one through six, but not seven through ten, for the reasons that we want to encourage relators to act quickly. But couldn't a rational Congress think, well, we want to outsource the work to relators seven through ten as well, and why is that absurd or unlikely or why does that defy common sense? I guess I'm just struggling to understand that argument.

Theodore J. Boutrous Jr.: Because, Your Honor, first, six years is a long time for a statute of limitations for fraud, number one. Number two, we're talking about equitable tolling that is pegged on diligence and that the -- that the party who is bringing the case acted diligently. As the Court said in Credit Suisse, it's inequitable to continue to toll a statute of limitations once the plaintiff knows there's been an injury and they have a claim.

It's inequitable. So Congress would never have thought that if it was -- in putting an equitable principle -- tolling principle into the statute, that it would allow the plaintiff to just lay back and wait for years and years and years to file the lawsuit.

It's contrary to the very essence of what equitable tolling is.

Samuel A. Alito, Jr.: Well, Congress -- Congress certainly could have wanted to give relators ten years to file suit, but that's not really the question. The question is did they want relators to file suit between years seven and ten in those cases where, A, the government didn't know about the fraud until year seven and the government chooses not to bring the case on its own.

Theodore J. Boutrous Jr.: Correct.

And -- and that's exactly right, Your Honor.

When we're getting to seven and ten years, the -- the memories are fading, the government that has -- which has this, you know, a special responsibility to ensure justice is done, statutes of limitations serve important purposes. In Gabelli, the Court repeated that this -- they're vital to the welfare of society.

They're important for justice.

Samuel A. Alito, Jr.: I mean, this is a -- this is an interesting case because it really does create a statutory interpretation dilemma. This is a -- a terribly-drafted statute.

It may serve wonderful purposes, but if -- if -- if I were to grade whoever drafted it -- anyway, I'll pass that. (Laughter.)

Samuel A. Alito, Jr.: But you have a real -- you have a real problem in trying to fit this into the statutory text. The other side I think has a real problem if they want to argue that this -- their argument makes that Congress really -- anybody in Congress really intended the result that they -- that they're advocating. So what's your best shot at fitting this into the statutory text?

Theodore J. Boutrous Jr.: My best shot, Your Honor, is that the -- the -- the language "action under Section 3730" is incorporated into Section 3731(b)(2), and that provision is triggered when -- when the official who is charged with responsibility to file a timely action had knowledge and they must do so within three years. And that's what the Fourth Circuit said in Sanders.

The -- the -- the -- it can only mean that we're talking about a case where -- it cannot only mean.

I agree with you this statute's a mess, but -- but a totally reasonable meaning is that it means that that's the official who was charged with getting a timely claim on file, timely action under Section 3730. And to say that it's the relator when, in the history of this -- this country, we've never had a statute of limitations discovery rule triggered by the knowledge of a third party or we -- and we've never had this Court apply the discovery rule to someone seeking penalties on behalf of an uninjured -- an injured third party.

That was Gabelli.

Here, the relator is in that role.

John G. Roberts, Jr.: Well, but, I mean, this --

Theodore J. Boutrous Jr.: We think our --

John G. Roberts, Jr.: These types of actions are exceptional in many -- many ways, but the -- the concerns you raise about delay and all that, aren't -- aren't they at least significantly addressed with the ten-year statute of repose?

Theodore J. Boutrous Jr.: No, Your Honor.

Ten years is -- is a lifetime when we're talking about litigation.

Six years is a long time. And in these cases, the -- the Washington Legal Foundation brief documents how the government will sometimes intervene -- will come in when they get the complaint.

The complaint will remain under seal.

And it will seek extension, extension, extension. Here, it was over a year.

So it can be ten years; it could be twelve years.

So ten years in civil litigation, memories fade, people -- witnesses die.

They disappear.

And so that is -- the difference between six years and ten years is a -- is a very long time. And in going back to --

John G. Roberts, Jr.: Well, we have quite a few cases that started, you know, ten years ago.

Theodore J. Boutrous Jr.: But they weren't filed at the ten-year mark.

They were filed and they -- they go through all sorts of processes and you can take discovery and you can find out the information and the litigation has commenced. And -- and -- and back to Justice Alito's question about my best argument, the other piece of it is we know that Congress adopted this tolling provision directly from Section 2416, which is the -- the tolling provision that only applies to actions brought by the United States in tort and contract actions. So that's another, I think, flashing red light that, at a bare minimum, this language is not clear.

It's as ambiguous as the language was viewed to be in Graham.

And then the question is, what is it most likely that Congress intended? What did it --

Brett M. Kavanaugh: Well, the state -- the states have an amicus brief that says no -- no state has a statute of limitations that explicitly adopts the rules reflected in -- the rule reflected in Petitioners' tortured interpretation of the FCA; it is Petitioners' proposed rule, not the FCA's plain meaning, that is absurd. So that is from 20 states.

Your response to their assessment?

Theodore J. Boutrous Jr.: Their assessment really has no bearing on what Congress intended in 1986.

And some of the --

Brett M. Kavanaugh: But their assessment does have some bearing on how we think about how it fits into the overall context of these kinds of cases, and that's been really the thrust of your argument, I think.

Theodore J. Boutrous Jr.: Well, I -- I -- I think that the -- that it does not have any bearing. I think it's incorrect because, again, I go back to the point that it's -- it's not equitable, it's not fair, it's -- it's contrary to the purposes of the False Claims Act, which are meant to incentivize in all ways relators coming forward.

So I -- we simply disagree with that assessment. There's -- there's -- and I didn't see any real clear examples in -- in -- in that brief or from the government that our rule would cause any problems whatsoever.

Our rule is consistent with history.

It's consistent with Gabelli, Credit Suisse, with Graham, and -- and basic principles governing statutes of limitations.

The --

Elena Kagan: It seems to me that, you know, this statute reflects a Congress that just decided that it did not want the government's decision whether to intervene to affect the statute of limitations.

And that might be a bad policy choice, but -- but it's -- it's -- you can imagine reasons why Congress would have made that choice, just to say: Look, we actually think that this is a very special kind of case, and we want to, you know, have a statute of limitations that, it's true, it's not -- it's not ordinary for a rule like this to be triggered by a third party, but this is a special kind of third party, which is going to get most of the money from the suit. And we actually think it's just easier, simpler, better for any number of reasons, that nothing turn on whether the government intervenes or not.

Theodore J. Boutrous Jr.: Theoretically, Congress could have thought through that carefully, Your Honor, and gone through that analysis, but there's no indication that it did.

Elena Kagan: Well, the indication is that they wrote a provision where nothing turns on intervention.

Theodore J. Boutrous Jr.: Well, Your Honor, I would respectfully submit that it's ambiguous. It's not clear, because the Congress used the language "action under Section 3730" imprecisely --

Brett M. Kavanaugh: What --

Theodore J. Boutrous Jr.: -- to sometimes refer to subsets of -- of those claims.

And, here, it's the actions by the only party mentioned in the provision.

Samuel A. Alito, Jr.: Well, why do you -- why do you argue that (b)(2) applies when the government intervenes? Why don't you just argue that (b)(2) applies only when the government itself brings suit?

Theodore J. Boutrous Jr.: That -- that would be another way to look at it, Your Honor.

I think that the government ultimately files a complaint in intervention, if it intervenes, and then that relate back -- relates back.

So I think it -- it -- it gets us, you know, to the same place, but I -- I do think that it's -- it's really over-reading Graham to suggest that this has been decided, that actions under Section 3730 necessarily covers (b)(2). The Court -- the government repeatedly cites and quotes Graham, suggesting that the Court held that, but it leaves out the fact that the Court very carefully said the text of Section 3731(b)(1) means all actions.

Brett M. Kavanaugh: Where -- where is the ambiguity? I'm not seeing ambiguity. Where exactly is the phrase that you think is ambiguous?

Theodore J. Boutrous Jr.: Well, it's -- it's a combination of things, Your Honor.

It's, as Graham said, Congress used that language, "action under Section 3730," imprecisely to refer to different groupings of cases. And when we -- when we look at that language as incorporated into (b)(2), and the only party referenced there is the United States, and it's triggered off the official of the United States charged with responsibility to act, we say the better reading is that that means it's an action where the United States brought the action or intervened in the action. The government is reading in the notion that the -- that the decision to act or responsibility to act includes the -- the decision not to act, which we think is not clear from the text.

So it's ambiguous.

Brett M. Kavanaugh: If it's -- if it's not ambiguous, then I don't think there is a statutory interpretation canon any longer that says we can conclude that Congress didn't mean what it said.

The only avenues are the absurdity canon or maybe scrivener's error, but you're not arguing any of those. So, if we conclude that it's not ambiguous, is there anything left?

Theodore J. Boutrous Jr.: There is, Your Honor. The Court's decision in Barnhart, which Respondents cite in their brief at page 20, says that if the text is -- if the -- the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent.

This statutory scheme is neither of those. And I'll reserve the rest of my time. Thank you, Your Honor.

John G. Roberts, Jr.: Thank you, counsel. Mr. Mayfield.

Earl N. Mayfield III: Mr. Chief Justice, may it please the Court: Section 31 -- 3731(b) is an event-based statute of limitations that makes no distinction as to the party to whom it applies.

It applies equally to both the United States and to relators who bring suits on behalf of the United States. In keeping with this Court's decision in Vermont Agency, in every case, the real party in interest is the United States.

And as many justices have just recognized, at all times, the United States maintains ultimate control over the suit and it is the ultimate beneficiary of the suit. Approximately 70 percent of qui tam suits are initiated by private relators.

The Department of Justice intervenes in only about a fifth of those.

But, in every case where the result is successful, either by settlement or by judgment, the United States is the ultimate beneficiary.

In every case, the United States gets at least 70 percent of the proceeds. And this is in keeping with the entire rational purpose of the statute, which, as a number of the Court members have noted, is the only reason to deviate from the plain language of the statute.

Neil Gorsuch: Well, counsel, your argument would have a lot more appeal if we didn't have Graham County knocking around out there.

So what do we do about that? You -- you're encouraging us to read that introductory language to the statute to mean what it seems to mean.

Earl N. Mayfield III: Yes, Your Honor.

Neil Gorsuch: But, in Graham County, we held it didn't mean what it seems to mean.

It wasn't as plain as we -- as you argue. So what's your best argument for addressing -- how would you have us best distinguish Graham County?

Earl N. Mayfield III: Yes, Justice Gorsuch. In Graham County, we had the anomalous situation where Congress simply forgot to provide an applicable statute of limitations to the retaliation provision that it had added in 1986. If one reads part (b)(1) and part (b)(2), both of those refer by their terms to false claims.

A retaliation suit is not a false claim, nor, under the 1986 amendment, is the United States ever a party to a retaliation suit.

It is brought solely by the private person retaliated against. So we had an ambiguity there and the Court recognized that ambiguity.

It had to choose between either the six years, which was the only solid number that was presented in terms of years at (b)(1), or, in the alternative, the default statute of limitations that the states had, which is the avenue the Court took. But, here, by contrast, we have plain language that applies on its face, a civil action under 3730. It doesn't differentiate whether or not a party is intervening, which the Congress could easily have done.

In point of fact, the Congress did do so in the very next section. In part C, it says: If the government elects to intervene and proceed with an action under -- brought under 3730(b), Congress could have simply taken that phrase and put it at the beginning of part (b)(2). That is what Petitioners are asking the Court to do today. But, as this Court has repeatedly held, that's improper because there is no absurdity.

The absurdity here would be if the statute didn't result in the United States obtaining more funds or if there was some anomalous result. But even Petitioner admits that their reading, the literal one, results in an outcome where, as they said at the very end of the reply brief, the government obtains more money. That was the point of the 1986 amendments.

This Court has said in both Clark and Reno that when looking at a statutory provision, if that provision uses the same term in the very same sentence, it means the same thing every time. Statutes are not ephemeral.

They are not shape shifters.

We do not give them different meanings because we would prefer a different outcome.

John G. Roberts, Jr.: Your friend relied on the, if I'm remembering right, the United Air Regulatory case.

Earl N. Mayfield III: Yes, Your Honor.

John G. Roberts, Jr.: How do you distinguish that?

Earl N. Mayfield III: Your Honor, in this case, we have a mechanism by which the Department always screens the cases.

It's somewhat unique.

The relevant official of the United States is always going to be a member of the Department of Justice. Very few other statutes act like that. In Vermont Agency, the Court pointed out there were four qui tam statutes.

But, in this case, the Department, the official charged with responsibility, is a designee of the Attorney General. Other statutes don't function like that, but there is a good reason for this, and that is Congress wanted the Department to have the first bite at the apple, to qualitatively pick the very best cases, to have the optimal use of the Department's resources. And then, when the Department decides not to intervene in those cases where it makes that decision, we have these other cases on the side, the vast majority of them, as it would happen. And the question which Petitioner never answers is, why would Congress want those cases to go fallow? Why would it want those frauds to go unredeemed?

Samuel A. Alito, Jr.: I think Congress could have done a lot of things.

It could have done other things so that there could -- those could be actionable.

It could have had a ten-year statute of limitations for everybody.

It could have had a discovery rule for the relator. Let me give you two cases, and you explain to me why Congress would have wanted a different result in these two cases. case a: Government does not want to intervene in the case.

It knows about the fraud before year seven. case b: Government doesn't want to intervene.

It doesn't know about the fraud before year seven. What is the reason for allowing B to go forward but not A?

Earl N. Mayfield III: Well, Your Honor, in all cases, the tolling provision would act to a defendant's benefit.

So, if a defendant could litigate the issue at the outset of the lawsuit and prevent the case from going forward, if it could show the government had not acted in a timely manner either based on real knowledge or constructive knowledge, but within that scheme, let's take year seven. If the government didn't act in year seven, and the relator brought the suit, at any time after that, the United States would still have the option of taking over the lawsuit. The intervention is always available to the government.

It doesn't depend on when the relator brings the suit.

Samuel A. Alito, Jr.: Well, the government could always bring this within ten years, could it not?

Earl N. Mayfield III: It would depend, Your Honor, on the tolling provision.

If its -- if its actor, the relevant government official, for instance, an AUSA or someone in the Civil Division, had known about the lawsuit, then no.

Samuel A. Alito, Jr.: Right.

Okay.

Okay. But I still don't quite understand your reason for saying Congress would have treated those two cases differently.

Earl N. Mayfield III: Well, the reason, Your Honor, it's -- it's both to spur the Department, the '86 amendments make clear that the Department said it wanted more time because these frauds were often hidden. But it also put an outer limit on it. Congress could have said five years or ten years for the tolling provision.

It thought three was reasonable.

But that also, Your Honor, affects relators. For instance, a relator might have an impediment to bringing a suit, such as not knowing about the False Claims Act.

Samuel A. Alito, Jr.: Yeah, well, then you have a discovery rule for the relator.

Earl N. Mayfield III: Which Congress elected not to do, Justice Alito.

Samuel A. Alito, Jr.: Right.

Exactly.

Earl N. Mayfield III: And so the question is why would that be rational, and the reason it would be --

Samuel A. Alito, Jr.: Yeah.

That's what I'm struggling with.

Earl N. Mayfield III: The reason it would be rational, Your Honor, is because the government ultimately benefits from the relator's action. If there is no knowledge issue and the relator is timely, he brings a suit, the government gets the money.

Samuel A. Alito, Jr.: Yeah, I understand the government benefits, but that would argue in favor of a ten-year statute of limitations. If the government chooses not to bring suit, why does it matter whether the government knew about this fraud before year seven or didn't know about the year -- about it before year seven? That's what I'm trying to get at.

Earl N. Mayfield III: I think Congress created a balancing to protect defendants, Justice Alito.

I mean, this -- this doesn't allow every suit to go forward.

If the Department -- if the relevant government official knows in year -- say, year six and doesn't act, for whatever reason, the Department may decide its resources are best spent somewhere else, it may decide that this case isn't meritorious, and let's say the relator then brings the suit, the Congress -- rather, the Department can always change its mind. It could in year ten, if the case is still going on, come in and take it over.

And that is to its benefit.

But, if the three-year tolling applies, because, if we want defendants to get a protection against the Department sitting and doing nothing, the Department was the institutional actor that testified before Congress, and Congress said, okay, we're going to give you more time than you had before, but you've got to do something.

You can't just not do anything once you know about it. But the Department wouldn't have that option if it didn't know.

And as the -- a number of Justices have pointed out, a relator has every incentive to bring it to the Department's attention quickly, although the relator may not be the only person who provides that information.

It could well be a witness. It could be the audit by the government.

Samuel A. Alito, Jr.: Why didn't your client bring it to the government's attention sooner?

Earl N. Mayfield III: It's not in the record, Your Honor, but my client was -- first, he was serving in Iraq.

Second, when he got back to the United States, he was not aware of the False Claims Act.

But then he was arrested. And at the time of his arrest, he told the FBI about facts regarding this fraud, which was different from the matter that then resulted in him going to jail.

Sonia Sotomayor: So what inducement is there -- I'm taking that you're agreeing with the United States that officials of the United States, you believe, also are just the Department of Justice official.

Earl N. Mayfield III: That is correct, Your Honor.

Sonia Sotomayor: It's sort of interesting that this statute doesn't define who officials are.

I don't know where you get it other than pointing to other statutes.

But we could -- that wasn't dealt with below. What inducement is there for the FBI to pass the information to the right officials? And how do we know in this case it wasn't done, that there wasn't a U.S. Attorney that this was discussed with in some way?

Earl N. Mayfield III: Well, ultimately, it was, Your Honor.

That happened after the initial meeting with the FBI.

It's not in the record, again, because that was not developed, and the court below did not consider it to be particularly relevant. But it's for that reason, Your Honor, that it's -- the official charged is cabined to the Department of Justice. If it could just be any government official, then that screening process that Congress designed wouldn't -- wouldn't act. There isn't anyone in the FBI or the OIG or the contracting agency who's responsible for protecting the government's rights. The Attorney General, however, in Section 3730(a), is the individual specifically charged with the statute to investigate every case.

It's a non-discretionary duty.

Sonia Sotomayor: So why didn't Congress reference that? Why didn't they, instead of just saying official of the United States, say official designated under the subsection you just mentioned?

Earl N. Mayfield III: We don't know, Your Honor.

We don't know why they did that, except that they did borrow --

Sonia Sotomayor: Other than Justice Alito's point that it's poorly written.

Earl N. Mayfield III: I think that -- I think that's fair, Your Honor, it is poorly written, which is why there are the plenary -- or, rather, plethora of these cases coming to the court. But they did borrow that.

I think there was some shorthand from 2416, as my colleague pointed out. But they borrowed only the tolling provision under 2416.

They did not borrow the party limitation under 2415. So, if, as Petitioners would have it, Congress had meant this provision to somehow apply only to the United States, it would have borrowed from 2415 and said in actions brought by the United States. But they didn't do that.

The plain language says it's a civil action under Section 3730. So having written it that way, the question is, why would we deviate from that? Is -- is the outcome absurd? It is not, in the sense there is a rational basis, even if any of us in here might have taken a different path in designing the statute, that is the outcome that prevails.

Samuel A. Alito, Jr.: And what happens if a relator brings a suit, the government chooses not to intervene, but then, as the suit goes on, the -- the -- it -- it appears that the relator is not fulfilling -- is not litigating the case in a -- in a diligent way? What can the government do at that point?

Earl N. Mayfield III: Justice Alito, the statute specifically provides for that because, at any time, the Department of Justice can dismiss the False Claims Act suit or, in the alternative, which also happens, it can take it over. It can do a -- there are -- although it does not happen frequently, there are occasions where the Department looks at a suit that's been in the system for some years and says: You know what, we will -- we will take that over after all.

Samuel A. Alito, Jr.: So the -- the relator does have some responsibilities with respect to the prosecution of the suit in the name of the United States?

Earl N. Mayfield III: Only with respect to his relationship to the Department.

For instance, if the Department requests that he be forwarded pleadings or if the Department asks that discovery be truncated in some way, those are his responsibilities.

Samuel A. Alito, Jr.: No, no, that's not my point.

This is an action in the name of the United States, correct?

Earl N. Mayfield III: That's correct.

Samuel A. Alito, Jr.: The relator is, in effect, representing the United States.

And the relator has responsibilities in that case? Otherwise, the government can intervene and take over the case?

Earl N. Mayfield III: The government always has the ultimate ability to take over the case, Justice Alito.

The relator is basically a free agent within those statutory constraints.

Samuel A. Alito, Jr.: Yeah.

Well, what I'm getting at -- I'm sure you realize this -- is why doesn't that suggest that the relator has -- is charged with responsibilities to act in the circumstances?

Earl N. Mayfield III: Because under no circumstances could the relator, who has taken no oath to the Constitution, is not employed in any way by the government, and is not answerable to the government during the course of the litigation in terms of if he decides to take witness A or to ask for specific documents, he's not carrying out a government policy, to differentiate from Dixson, which the Petitioners relied on. In that case, you had individuals who, by contract, were dispensing federal housing funds.

Samuel A. Alito, Jr.: Yeah.

Well, are -- are you arguing that Vermont Agency was incorrectly decided?

Earl N. Mayfield III: Not at all, Your Honor. It's just simply the degree to which the assignment gives the -- the government's agent in this case free reign. The ultimate outcome of the case, whether or not it's dismissed, intervened, or settled, is always up to the government.

The government always gets to make that decision, and over the relator's objections if it so chooses. But, in terms of if it doesn't intervene, the relator can act like a normal litigant and make his own tactical decisions, but he's not an officer in any meaningful sense because he -- he cannot obligate the United States. If he signs a contract, he's not doing so on behalf of the United States.

No one would believe he was.

He's carrying out no statutory duties.

And he is not answerable, ultimately, to anyone in the Department of Justice. If my client decided today that he wanted to walk away from this case, he could. There's no one to make him do it.

And the only thing that could save it is if the Department took it over.

Elena Kagan: Mr. Mayfield, am -- am I right that in certain circumstances this statute actually gives the relator a longer statute of limitations than the government has? In other words, take a case where the government finds out on day one about a fraud. The government, as I read the statute, then has six years. But, if the relator finds out on day one about a fraud and thinks it's the kind of fraud that the government or any -- nobody else will ever find out about, then that relator can sit on his rights for ten years, so the relator actually gets four more years than the government itself does. Is that right? And if it's right, why on earth does it make any sense?

Earl N. Mayfield III: It's a -- it's a hypothetical that's not likely to happen in the real world, Justice Kagan, but it is hypothetically right.

But at all times the government could still take over the case. Let's say the relator in that case waits until year ten, files.

At that very moment, the government can intervene.

If the relator takes another five years to litigate that case, and we're in year 15, the government can intervene. It's always the government's case.

At no point does a relator have greater rights than the government.

And that makes sense.

John G. Roberts, Jr.: Well, I suppose the -- I suppose the government can also find a relator, right?

Earl N. Mayfield III: It could if it were that diligent, Your Honor.

John G. Roberts, Jr.: I mean, short -- just short of year ten?

Earl N. Mayfield III: If it -- if it were so inclined, it could, Your Honor.

And if -- let's assume that the United States had a maligned motive.

It could also sit on its rights for ten years and pretend it didn't know, which is really the fallacy of Petitioners' position, which is the assumption that relators are sometimes -- are always acting based on maligned interests, but the government is always noble. But let's assume they're both revenue maximizers.

The government could sit on its rights. Every harm that Petitioners point to exists in a scheme in which the relators play no role.

The same discovery occurs in terms of what the government knew and when it knew it. And the government always --

John G. Roberts, Jr.: Well, that's -- I don't know if that's more or less academic than your friend's hypothetical, but it certainly is academic that the United States would allow fraud to be continued to practice for, you know, nine years and 300 days or whatever.

Earl N. Mayfield III: Well, Mr. Chief Justice, it's actually probably more likely, but the reason would be different.

It might not necessarily be maligned.

It might be a lack of resources. But we know, indeed, that was what instigated the 1986 amendment, that the Department frequently finds itself unable to timely respond to these kinds of frauds and often doesn't know.

Again, 70 percent of these cases are brought by private relators. The Department and its associate agencies simply lack the investigative power to discover all these frauds.

So it's in the government's interest for the relator to do it. If you have that bad actor who waits until year ten and assumes all along the way that the government doesn't otherwise know, which is a foolhardy assumption on the part of a relator, because the relator doesn't know what investigation the government's doing on its own, he doesn't know if another whistleblower is coming forward, he doesn't know if another witness who doesn't want to be a relator is going to come forward. He controls none of these things.

He does not control the government's internal knowledge or decision -- decision-making power. The only thing he controls is whether or not he comes forward. And if someone else beats him to it, he's out of luck.

So it would be foolhardy for him to do it and it would be malpractice for any attorney to recommend that he do it. But even if -- even if someone decided to take that insane gamble, at the end of ten years, whenever that suit gets filed, and let's assume the suit is successful, he can walk into court and the United States can say, when they try to settle the case, that relator sat on his rights.

We don't think he deserves the full 30 percent.

And the court can knock it down. So, on both ends, Congress has built a statutory scheme that confines the very harms that Petitioner has raised here, harms that they can't really point to exist in the real world because virtually all relators bring their suits as quick -- as soon as they get a lawyer who is able to identify the fraud and bring it forward, because, otherwise, they may lose.

They'll lose everything. It would be like taking a lottery ticket and dropping it in the toilet.

No one does that.

And at the end of the day, every time a relator acts, no matter when he does it, whether it be year one, year five, or year ten, it is the government that ultimately benefits. Thank you.

We urge the affirmance of the decision below.

John G. Roberts, Jr.: Thank you, counsel. Mr. Guarnieri.

Matthew Guarnieri: Mr. Chief Justice, and may it please the Court: I'd like to begin by addressing a question that Justice Kagan posed to Mr. Mayfield.

In our view, the correct interpretation of the statute mandates that the relator and the United States always have the same deadlines for filing suit. The six-year limitations period in (b)(1) and the three-year tolling rule in (b)(2) will expire on precisely the same date for both a potential relator and for the United States. So, under the correct interpretation of the statute, a relator could never bring a timely action, unless the United States could also bring an action on the same day alleging the same fraud. The second point I'd like to address, Mr. Boutrous alluded repeatedly earlier to principles of equitable tolling.

Samuel A. Alito, Jr.: What's the textual basis for that?

Matthew Guarnieri: Both paragraphs 2 -- paragraph (b)(2) and paragraph (b)(1) both apply to a civil action under Section 3730. So, in any case, a court -- the tolling rules will be identical, whether or not the United States initiates the suit, the United States intervenes in a suit initiated by a relator, or the United States elects not to intervene in a suit initiated by a relator. The statute itself draws no distinction between those three categories of cases, and, therefore, we think the tolling rule and the six-year limitations period in (b)(1) will operate in the same way in all of those suits.

Elena Kagan: Yeah, I guess my hypothetical was a slightly different one.

It was supposing that the federal government knows on day one of the fraud, it gets six years to bring the fraud, right?

Matthew Guarnieri: That's correct.

Elena Kagan: But then I changed the case, essentially, and said, well, now we're dealing with a different case.

And in this case, the federal government doesn't know of the fraud.

Instead, the relator knows of the fraud on day one.

And assuming that the government remains in blissful ignorance, and everybody else does too, he gets ten years. Isn't that right?

Matthew Guarnieri: That's correct.

We think that that's how the the statute would operate. Now the relator in that sense would also have more of the six-year period to bring the suit.

If the relator learns of the fraud on day one, the relator will have more of those six years in which to file suit than the United States will have.

And we think that's of no consequence. It's -- Congress adopted a different form of parallel treatment, and the form of parallel treatment that Congress adopted ensures that the -- the deadlines expire for both the United States and the relator at exactly the same point in time. As I began to say earlier, Mr. Boutrous alluded repeatedly to principles of equitable tolling, the kinds of principles this Court encountered in -- in the Gabelli decision and in Credit -- in Credit Suisse.

There is no occasion here to resort to principles of equitable tolling because there is a statute on point that dictates the tolling rule that applies in cases like this one. And for all the reasons that have already been discussed this morning, the statutory text makes that tolling rule applicable even in a non-intervened suit. There's also been significant discussion this morning of this Court's decision in Graham County.

Graham County interpreted the exact same language that is -- is at issue here, that is, the phrase "a civil action under Section 3730 as used in 3731(b)," to refer to a subset of civil actions under the False Claims Act. But the subset that the Court identified in Graham County includes a non-intervened suit just like this one.

The Court interpreted that language to refer to suits under 3730(a) or (b) alleging a violation of 3729.

This is such a suit.

This suit falls into that category regardless of whether or not the United States elects to intervene in the action. There's also been -- been some discussion about why this was a sensible policy result.

We think the key thing to keep in mind in that respect is that a relator is permitted to sue to vindicate an interest of the United States. The United States is the injured party in all of these cases.

The United States is a real party in interest regardless of whether or not it elects to intervene in the action, the majority of any recovery would go to the United States.

And in that context, it made good sense that Congress chose to -- to make the tolling rule in (b)(1) applicable based on the knowledge of the injured party, that is, the United States.

Samuel A. Alito, Jr.: Now, if the government decides it doesn't want to intervene, what difference does it make whether it knew about this fraud or not? That's what I just can't understand.

Matthew Guarnieri: Congress chose to make the tolling rule applicable based on the knowledge of the United States.

And we think a -- another way to pose a similar question, Justice Alito, would be: Why should the United States be deprived of the assistance of a private relator during that three-year tolling period? Petitioners have yet to identify a sensible reason Congress would have wanted to deprive the United States of the assistance of the relator during those years.

The logic --

Samuel A. Alito, Jr.: Well, it --

Matthew Guarnieri: -- and the structure --

Samuel A. Alito, Jr.: -- deprives them of the assistance of a relator during those years if the government knew about this on day one. That really doesn't answer my question.

Matthew Guarnieri: If the government knows about the fraud on day one --

Samuel A. Alito, Jr.: Right.

Matthew Guarnieri: -- Congress made a reasonable decision that the tolling period would extend only three years from that point in time.

But the same is true for a relator. A relator could not rely on the tolling provision to bring a suit after those three years have expired.

It's a reasonable policy choice that's reflected in clear statutory text here. All the Court needs to do here is -- is follow the statute as written and apply the -- the language of (b), using the same construction it applied in Graham County. If there are no further questions, I'd be happy to yield the balance of my time.

John G. Roberts, Jr.: Thank you, counsel. Three minutes, Mr. Boutrous.

Theodore J. Boutrous Jr.: Thank you, Your Honor. I will -- I will begin with the last point that the United States has made.

They made it in their brief repeatedly, and it's just incorrect. The Court did not in Graham hold that the -- the language "action under Section 3730" meant the same thing in (b)(1) and (b)(2).

On page 421 and 422, which is what the government keeps citing, the Court began its sentence with "Section 3731(b)(1)'s text," is talking about the text of that particular provision. And if you look at the analysis on page 418, where the Court was specifically talking about the virtually identical language to what we have here in subsection (d), which was then (c), the Court made exactly the point we are making: That provision only referenced the United States, and the -- the Court said that Congress used that phrase "action under Section 37" imprecisely, sometimes to only refer to sub -- to subsets of those actions. And that's what it did here. The United States is ignoring -- I didn't hear one word about the purposes of statutes of limitations from anyone on the other side. Statutes of limitations serve valuable purposes.

They -- they spark action quickly and more quickly, and they're meant to protect defendants, allowing a rule that allows tolling after -- basically, this is self-tolling.

The relator can just decide to press the button and toll the statute of limitations and then let it loose and it -- and it goes.

That's -- Congress would not have intended -- it's implausible that it would have intended that. I'd like to briefly address the point, Justice Sotomayor, you were making, and it's really our alternative argument, about the official of the United States.

I don't see why the United States should and the Respondent should have it both ways.

They say the relator stands in the shoes of the United States.

The relator should -- everything should be the same between the relator and the United States. If that's the case, then I think our alternative argument is very appealing, that where the government doesn't involve -- doesn't intervene, and the inter -- the relator is acting under this Court's decision in Stevens as the designated agent of the United States, and it's not an assignee when it's pursuing penalties on behalf of the United States and damages for the United States, it's the agent, it's --

Sonia Sotomayor: The use of the word --

Theodore J. Boutrous Jr.: -- the prosecutor.

Sonia Sotomayor: -- "officer" is very different than a "representative."

Theodore J. Boutrous Jr.: It -- it actually --

Sonia Sotomayor: Or even "agent." Those are substantially different concepts. And so I do think the word "official" sounds -- means what it sounds like, an official and not a representative.

Theodore J. Boutrous Jr.: Well, Your Honor, I would point to this Court's decision two years before the 1986 amendments in -- in United States versus Dixson, a criminal case where the Court held that the -- the words "public officials" under the federal bribery statute encompassed private corporate officers who were performing public responsibilities. And, here, it's -- it's not fair to say that the government -- that the relator is just on his own, the government does -- doesn't intervene, and then argue that our rule is wrong because the relator is doing this important work for the government.

It's acting as the agent for the government.

Ruth Bader Ginsburg: "Agent" is a different word than "official."

Theodore J. Boutrous Jr.: But -- it -- it is, Your Honor.

But an agent who is performing official responsibilities, I think their -- their knowledge should be imputed to the government. Thank you very much.

John G. Roberts, Jr.: Thank you, counsel. The case is submitted.