This appeal presents the question of whether the equitable tolling provision of the False Claims Act statute of limitations ap
Background
Qui tam plaintiff Michael A. Hyatt (“Hyatt”) worked as an engineer at Northrop Corporation (“Northrop”) from August of 1981 to May 13, 1986. In late 1982, Hyatt reported to his superiors his concerns that the Inertial Measurement Unit used in the Peacekeeper (“MX”) missile program was defective in its design, development and manufacture. He alleges that soon thereafter he began to suffer harassment in retaliation for his report. Northrop terminated Hyatt on May 13,1986.
Hyatt filed his first complaint against Northrop on October 3, 1986 (“Hyatt I ”) asserting, among other claims, a qui tam action under the False Claims Act, 31 U.S.C. §§ 3729 et seq. (“FCA” or “Act”). Included in the complaint was an allegation that Northrop used defective components in a variety of projects, including the MX missile and the B-1B bomber. The district court dismissed the qui tam action on March 31, 1988 for lack of jurisdiction.
Hyatt filed his second complaint against Northrop on October 15, 1987 (“Hyatt II”). This complaint also asserted a qui tam action for FCA violations in connection with the MX missile program. The district court dismissed most of Hyatt’s allegations. The remaining claims settled.
Hyatt filed this, his third complaint against Northrop, on April 30, 1993 ("Hyatt III”). The complaint again asserted a qui tam action for FCA violations concerning the MX missile and B-1B bomber programs. Northrop moved to dismiss the complaint on numerous grounds, including res judicata, statute of limitations, and 31 U.S.C. § 3730(b)(5), which bars qui tam actions which are based on facts underlying a previously filed qui tam action. Hyatt thereafter filed a first amended complaint on July 11, 1994, which added Kulite Semiconductor Products, Cal-Doran Metallurgical Services (“Cal-Doran”) and Solid State Devices as defendants. The amended complaint contained allegations concerning the Blue Laser, MX missile, and B-1B bomber programs. Hyatt later voluntarily dismissed his MX missile and Blue Laser claims against Northrop. Remaining are claims against Kulite Semiconductor Products and Solid State Devices in connection with the MX missile program and against Northrop and Cal-Doran concerning the B-1B bomber program.
The Hyatt III Defendants moved to dismiss the first amended complaint on several grounds, including expiration of the statute of limitations. The district court granted the motion based on the statute of limitations only, holding that while the tolling provision in 31 U.S.C. § 3731(b)(2), added to the FCA in 1986, applies retrospectively to this action, that provision by its terms applies only to suits brought by the government and not to qui tam suits. Hyatt v. Northrop Corp.,
Discussion
The district court’s interpretation of a statute is a question of law reviewed de novo. Viceroy Gold Corp. v. Aubry,
(b) A civil action under section 3730 may not be brought—
(1) more than 6 years after the date on which the violation of Section 3729 is committed, or
(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.
The Act creates two types of civil actions. The first, under § 3730(a), is brought by the Attorney General on behalf of the United States. The other, under § 3730(b), is a qui tam action brought by private plaintiffs, called relators, also on behalf of the United States.
The Hyatt III Defendants argue that the plain meaning of the statute shows that the tolling provision of § 3731(b)(2) was not intended to apply to qui tam plaintiffs.
The Hyatt III Defendants further contend the legislative history demonstrates that the tolling provision was meant to apply only to the government. They point to the House and Senate Judiciary Committee reports which refer to the “government” in explaining the addition of a tolling provision. H.R.Rep. No. 660, 99th Cong., 2d Sess. 25 (1986);
However, the legislative history of the Act is replete with many instances in which the word “government” is used when referring to suits brought in the name of the United States by either the Attorney General or private qui tam plaintiffs. For example, in discussing the scienter requirement, the eom-
Given this history, the fact that the reports refer to “the Government” in discussing tolling without specifically mentioning qui tam plaintiffs is a weak rationale to support a decision contrary to the plain meaning of the statute. See Church of Scientology v. United States Dep’t of Justice,
Further, Congress made many distinctions between the rights of the government and rights of the qui tam plaintiff in § 3730. See, e.g., 31 U.S.C. § 3730(b)(4)(A) (permitting the government to take over filed qui tam action); § 3730(c)(1) (granting the government primary responsibility for conducting suit); § 3730(c)(2)(A) (permitting the government to dismiss an action without the relator’s consent); § 3730(e)(2)(B) (permitting the government to settle without the relator’s consent). If Congress wanted to restrict the operation of the tolling provision to suits brought by the government, it could easily have done so. It did not. “ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Tang v. Reno,
Northrop argues that the language of 31 U.S.C. § 3731(b)(2) is the same as that in 28 U.S.C. § 2416, which concerns the “[t]ime for commencing actions brought by the United States.”
For all these reasons, we conclude that Congress did not intend to restrict the tolling provisions of the Act to apply to suits brought by the Attorney General alone, but intended the tolling provision to apply to qui tam plaintiffs as well.
Having decided this, the question remains as to what event initiates the running of the statute of limitations against a qui tam plaintiff under 31 U.S.C. § 3731(b)(2). Prior to the 1986 amendments, an action under the FCA had to be brought within six years of the alleged violation. 31 U.S.C. § 3731(b) (1982). Although the pre1986 statute did not contain a tolling provision, several courts applied equitable tolling principles to FCA suits to hold that the limitations period begins to run from the time the government discovers or should have discovered the fraud, rather from the date of the violation itself. See, e.g., United States v. Uzzell,
The 1986 FCA amendments codified this equitable tolling principle in 31 U.S.C. § 3731(b)(2), which tolls the statute of limitations until the facts underlying the fraud are or should have been discovered by “the official of the United States charged with responsibility to act in the circumstances,” up to a maximum of ten years. See S.Rep. No. 345, 99th Cong., 2d Sess. 15 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5280 (“[B]ecause fraud is, by nature, deceptive, such tolling of the statute of limitations is necessary to ensure the Government’s rights are not lost through a wrongdoer’s successful deception.”); H.R.Rep. No. 660, 99th Cong., 2d Sess. 25 (1986) (“[F]raud is often difficult to detect and ... the statute of limitations should not preclude the Government from bringing a cause of action under this Act if they were not aware of the fraud.”)
Statutory limitation periods are:
‘designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.’
American Pipe & Constr. Co. v. Utah,
Thus, tolling statutes generally only extend the statute of limitations during the period in which the plaintiff did not know of the defendant’s wrongful conduct. The Act codifies this concept by extending the statute of limitations three years “after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances.” 31 U.S.C. § 3731(b)(2).
When the Attorney General files an action under the Act, courts have differed on which government officer is “charged with responsibility to act” on the claim. Compare United States v. Macomb Contracting,
With a qui tam plaintiff, the question is far less difficult. The qui tam plaintiff is the only person “charged with responsibility to act in the circumstances.”
Hyatt cannot have it both ways. If he accepts the benefits of the tolling statute, he must be subject to its restrictions. His duty to act must be triggered by his own knowledge, not the knowledge of others. This interpretation comports with the legislative scheme of the Act, the purposes of statutes of limitations and the FCA tolling provisions. Hyatt filed his original complaint in this action on April 30, 1993. He became aware of the alleged fraud sometime before Northrop fired him on May 13, 1986. The six-year general limitation period has expired and his suit was filed more than three years after he knew of the alleged wrong. Hyatt’s claims are therefore untimely.
To summarize: a civil action under the Act brought by a qui tam plaintiff must be commenced no more than (1) six years after the date on which the FCA violation is committed or (2) three years after the date when facts material to the right of action are known or reasonably should have been known by the qui tam plaintiff, whichever occurs last. A suit under the Act must, in any event, be brought no more than ten years after the date on which the violation occurred.
Given this holding, it is unnecessary to reach the other issues raised by the Hyatt III Defendants. The order dismissing the amended complaint is AFFIRMED.
Notes
. The Hyatt I district court declined to apply the 1986 FCA amendments retrospectively and dismissed the action under the "prior government knowledge” defense. Under this defense, if the government had prior knowledge of the facts underlying a qui tam action, the court lacked jurisdiction over the action. See 31 U.S.C. § 3730(b)(4) (1982). The 1986 amendments eliminate this defense, permitting a qui tam action based on publicly disclosed facts if the plaintiff was the original source of the information. See 31 U.S.C. § 3730(e)(4) (1986). The Ninth Circuit reversed the district court’s ruling that § 3730(e)(4) does not apply retrospectively in Hyatt v. Northrop Corp.,
. Cal-Doran argues the district court erred in holding that amended § 3731(b) applies retrospectively. Statutes of limitations should generally be applied retrospectively as long as the application would not revive a stale claim, which it would not here. Chenault v. United States Postal Serv.,
. The House report relied upon provides: “It was brought to the attention of the Committee that fraud is often difficult to detect and that the statute of limitations should not preclude the Government from bringing a cause of action under this Act if they were not aware of the fraud. The Committee agreed that this was unfair and so expanded the statute of limitations. However, the Committee did not intend to allow the Government to bring fraud actions ad inftn-tum [sic], and therefore imposed the strict 10 year limit on False Claims Act cases.” H.R.Rep. No. 99-660, 99th Cong., 2d Sess. 25 (1986).
.The Senate report provides: "[T]he subcommittee added a modification of the statute of limitations to permit the Government to bring an action within 6 years of when the false claim is submitted (current standard) or within 3 years of when the Government learned of a violation, whichever is later. The subcommittee agreed that because fraud is, by nature, deceptive, such tolling of the statute of limitations is necessary to ensure the Government’s rights are not lost through a wrongdoer’s successful deception.” S.Rep. No. 345, 99th Cong., 2d Sess. 15 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5280.
.'TOhe civil False Claims Act currently provides that the Government need only prove that the defendant knowingly submitted a false claim. However, this standard has been construed by some courts to require that the Government prove the defendant had actual knowledge of fraud_” S.Rep. No. 345, 99th Cong., 2d Sess. 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5271-72 (emphasis supplied). The report cites as an example of its point United States v. Aerodex, Inc.,
. The Senate report states: "Some courts have required that the United States prove a violation by clear and convincing ... evidence.” S.Rep. No. 345, 99th Cong., 2d Sess. 7 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5272. The report cites United States v. Ueber,
. 28 U.S.C. § 2416 is part of chapter 161 of Title 28. Chapter 161 is entitled "United States as a Party Generally” and deals with various concerns involved when the United States government is a party to a lawsuit. See 28 U.S.C. §§ 2401-2416 (1994). Section 2416(c) provides that the § 2415 statute of limitations is tolled while the “facts material -to the right of action are not known and reasonably could not be
. Although it may seem incongruous to hold that a qui tam plaintiff could be considered “an official of the United States charged with responsibility to act,” it is not — particularly in view of the FCA statutory scheme. In interpreting a statute, a court should not look to isolated sentences but rather to the whole law, and to its object and policy. F.D.I.C. v. McSweeney,