LA Akin Gump associate Scott Street summarizes yesterday’s oral argument in United States ex rel. Eisenstein v. City of New York. Scott’s preview of the case is available on SCOTUSwiki, here.

Although a sizable chunk of the oral argument in United States ex rel. Eisenstein v. City of New York focused on statutory interpretation–whether the United States qualifies as a “party” under Federal Rule of Appellate Procedure 4(a) when it does not intervene in a qui tam False Claims Act action–the Justices seemed more concerned about the consequences of their interpretation than with the “right” answer.

To begin, the oral argument showed that there is no clear answer to whether the United States is a “party” to a qui tam action when it declines to intervene. As both parties point out in their briefing, a qui tam action is unique and the Government has unique rights, even when it declines to intervene. It is not a stranger to the litigation. It is the real party in interest. It is named in the caption of the case. It receives the bulk of any monetary recovery. It has certain rights to participate in discovery–although, as the Solicitor General and the City pointed out, the FCA generally exempts the Government from the discovery process. In sum, the United States bears some of the characteristics of a party and some characteristics of a non-party.

Eisenstein, of course, urged the Court to focus on the party characteristics. The City and the Solicitor General urged the Court to focus on the non-party characteristics, particularly the discovery exemption. And the Solicitor General again argued that Congress enacted the 60-day time period for filing a notice of appeal to accommodate the Government’s slow, institutional decision-making process.

Interestingly, Rule 4(a)(1)(B) does not just give the United States 60 days to appeal an adverse judgment. It gives “any party” 60 days to appeal when “the United States or its officer or agency is a party.” Thus, as Eisenstein has pointed out in his briefs, if the United States had intervened in this action and won, the defendant would have had 60 days to appeal even though the Government’s institutional decision-making process had nothing to digest. That conflicts with the Solicitor General’s rigid interpretation of Rule 4(a)(1)(B). But the Justices did not pick up on that point.

Instead, the Justices focused on the consequences of their decision and seemed determined to pick the most reasonable interpretation of Rule 4(a). The Chief Justice captured this dilemma perfectly. On the one hand, he wondered, “if the inquiry says it’s hard to tell, there’s a 30-day limit and there’s a 60-day limit, I don’t know of any responsible counsel who wouldn’t file within 30 days,” particularly since it is so easy to file the single-page notice of appeal. On the other hand, “what’s the big deal with letting them have for 60 … which also solves the problem of the potential trap for the unwary?” Several Justices, including the Chief Justice and Justice Stevens, seemed especially concerned with applying the 30-day rule because it would require dismissing all of those appeals that had been filed outside of 30 days, but within 60, in reliance on multiple circuit court decisions.

The Solicitor General tried to rebut that concern by arguing that applying the 60-day rule “could also [make] the Government a party under the other rule[s],” principally the discovery rules that the FCA exempts the Government from. But the Chief Justice said that the Court could simply limit its decision to Rule 4(a), erring on the side of caution because it prefers to make the FRAP as easy to understand as possible, especially when construing a jurisdictional rule like FRAP 4(a).

That would cause the least amount of harm, a goal on which the Chief Justice and Justice Stevens seemed fixated. And, as they pointed out, if Congress disagrees with the interpretation, it can rewrite the Rules to make it clear that the 60-day provision does not apply to qui tam actions in which the United States does not intervene. With the possible exception of Justice Ginsburg, who seemed inclined to adopt a hyper-technical interpretation of the term “party” in Rule 4(a), that result would appeal to most of the Justices and would create the least amount of chaos in the lower courts–something the Court has become increasingly aware of in recent years.

Posted in U.S. ex rel. Eisenstein v. City of New York, Uncategorized