Analysis: Opinion in U.S. ex rel. Eisenstein v. City of New York
LA Akin Gump associate Scott Street analyzes Monday’s decision in Eisenstein. More of Scott’s writing on the case is available on SCOTUSwiki, here.
When the Supreme Court heard oral argument in Eisenstein on April 21, only Justice Ginsburg seemed inclined to adopt a strict reading of Federal Rule of Appellate Procedure 4(a)(1) and provide a sixty-day window to appeal only when the United States actually intervenes in a qui tam action under the False Claims Act. After all, although they emphasized intervention during oral argument, even the City of New York and the Solicitor General argued that, because of the unique nature of the FCA, the sixty-day limit should apply when the government does not formally intervene but asserts "particular rights" or "actively participates" in the action.
But the Court nevertheless took the narrow route, holding unanimously that the sixty-day window for filing a notice of appeal only applies when the United States has formally intervened in the action. I suspect that neither the City nor the Solicitor General expected the Court to go that far.
On the one hand, it is not surprising that the Court avoided the "active participation" test that the Second Circuit applied in Eisenstein. That standard would have been too difficult and time-consuming to apply in this procedural context. But given the unique nature of the FCA"”a distinction that the City and the Solicitor General also stressed before the Court"”and the goal of making procedural rules easy to understand, the Court easily could have adopted the sixty-day rule, which "“ as the Chief Justice noted during oral argument "“ would have caused the least amount of prejudice to the parties. Instead, the Court focused on dictionary and statutory definitions of the terms "party" and "intervention" and largely minimized the unique rights that the federal government possesses in these qui tam actions.
Here, the Court's decision was a blow to the relator, Eisenstein, who filed his notice of appeal fifty-four days after the entry of judgment. The Court has dismissed his appeal. But, ironically, the Court's decision may put a greater burden on the United States than relators in the future. Now, relators know to file their notices of appeal within thirty days of the entry of judgment no matter who is involved in the litigation. The federal government, on the other hand, will have to think more carefully and more quickly about whether it wants to intervene in a qui tam action. Putting aside the intellectual question of what interpretation of FRAP 4(a)(1) is "correct," I have always wondered why the government wanted the thirty-day time period to apply. It may have to ask itself the same question now.