UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES ex rel. LANDIS, et al.,
Plaintiffs,
v. Case No. 1:10-cv-00976 (CRC)
TAILWIND SPORTS CORP., et al.,
Defendants.
OPINION AND ORDER
On June 19, 2014, the Court issued a Memorandum Opinion granting in part the CSE
Defendants’ motion to dismiss Relator Floyd Landis’s Second Amended Complaint. See ECF No.
174.1 In doing so, it considered whether the False Claims Act’s (“FCA’s”) tolling provision applies
to relators’ claims as to which the United States has not intervened. That provision reads as
follows:
(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.
31 U.S.C. § 3731(b). After thorough briefing on the issue—and fully accounting for the split of
authority among lower courts—the Court adopted the “majority approach”: that the FCA’s tolling
1
The Court’s opinion was issued by the Honorable Robert L. Wilkins, who previously presided
over this case.
provision does not apply to relators’ non-intervened claims. Mem. Op. of June 19, 2014, at 28, 30.
The Court reasoned that it would “def[y] logic to hinge the tolling question on when the responsible
governmental official possessed sufficient knowledge to act, when in reality that governmental
official has chosen not to act.” Id. at 30. Because the government had not intervened against the
CSE Defendants, the Court concluded that Relator could recover against them only for allegedly
false claims submitted on or after June 10, 2004—not on or after June 10, 2000, as the tolling
provision would have allowed.
Relator has moved the Court to reconsider this portion of its prior Memorandum Opinion.
His motion is “based on” two Supreme Court opinions—one decided before the Memorandum
Opinion was issued, and one after—and “is further supported by” a recent decision of this Court.
Mem. Supp. Relator’s Mot. Reconsideration 3 (“Mot. Reconsideration”), ECF No. 497. Relator
also repeats arguments he made at the motion-to-dismiss stage and raises others for the first time.
Because Relator has not met the stringent standard for reconsidering interlocutory orders, the Court
will deny his motion.2
A. Legal Standard
Under the so-called “law of the case” doctrine, “when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same case.”
Arizona v. California, 460 U.S. 605, 618 (1983); see also LaShawn A. v. Barry, 87 F.3d 1389, 1393
(D.C. Cir. 1996) (“[T]he same issue presented a second time in the same case in the same court
should lead to the same result.”). The doctrine, as such, does not technically apply to interlocutory
orders such as the partial granting of a motion to dismiss. Langevine v. Dist. of Columbia, 106 F.3d
1018, 1023 (D.C. Cir. 1997). And under Rule 54(b), the Court’s earlier decision “may be revised at
2
As explained below, the Court will also grant Relator’s motion to clarify a portion of its June 27,
2014 Order of Dismissal.
2
any time before the entry of a [final] judgment.” Fed. R. Civ. P. 54(b). In a sense, then, the Court
is “free to reconsider” its analysis on the FCA tolling issue. Filebark v. U.S. Dep’t of Transp., 555
F.3d 1009, 1013 (D.C. Cir. 2009).
But “this is not to say that district courts should take lightly reconsideration of the orders of
their colleagues.” Moore v. Hartman, 332 F. Supp. 2d 252, 256 (D.D.C. 2004). Although Rule
54(b) does not specify the standard of review applicable to motions for reconsideration of
interlocutory orders, they should be reconsidered only “as justice requires.” United States v.
Slough, 61 F. Supp. 3d 103, 107 (D.D.C. 2014) (quoting United States v. Coughlin, 821 F. Supp. 2d
8, 18 (D.D.C. 2011)). That phrase is a doctrinal term of art—in deciding whether “justice requires”
reversal of its prior interlocutory order, a court may consider whether it
[1] patently misunderstood a party, [2] has made a decision outside the adversarial
issues presented to the Court by the parties, [3] has made an error not of reasoning
but of apprehension, or [4] whe[ther] a controlling or significant change in the law
or facts [has occurred] since the submission of the issue to the Court.
Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005). Under a slightly
different formulation, a court should “grant a motion for reconsideration of an interlocutory order
only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new
evidence not previously available; or (3) a clear error in the first order.” BEG Invs., LLC v. Alberti,
85 F. Supp. 3d 54, 58 (D.D.C. 2015) (quoting Stewart v. Panetta, 826 F. Supp. 2d 176, 177 (D.D.C.
2011)). District courts should “be guided by the general principles underlying the [law-of-the-case]
doctrine” in applying these factors to the reconsideration of interlocutory orders. Sloan v. Urban
Title Servs., Inc., 770 F. Supp. 2d 216, 224 (D.D.C. 2011).
B. Analysis
Relator cites two new authorities in support of his motion. The first, Kellogg Brown & Root
Services, Inc. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015), cannot bear the weight he
3
places on it. That decision addressed only “two questions”: issues regarding the Wartime
Suspension of Limitations Act and the FCA’s first-to-file bar. Id. at 1973. In describing how the
FCA’s tolling provision functions, the Court explained that
a qui tam action must be brought within six years of a violation or within three
years of the date by which the United States should have known about a violation.
In no circumstances, however, may a suit be brought more than 10 years after the
date of a violation.
Id. at 1974 (citing 31 U.S.C. § 3731(b)). Relator argues that because the Supreme Court did not
explicitly recognize the exclusion of non-intervened claims from the FCA’s tolling provision, such
claims fall within the Court’s encompassing phrase “a qui tam action.” Id. (emphasis added). This
is but a variation of the argument rejected by the Court in its earlier Memorandum Opinion: that
§ 3731(b)’s phrase “[a] civil action under section 3730” necessarily includes non-intervened claims
because the statute does not exclude them in so many words. It is implausible that the Supreme
Court intentionally—and without the benefit of briefing—staked out a position on an interpretive
issue dividing lower courts merely because it faithfully paraphrased § 3731(b)’s statute-of-
limitations provision.
Relator’s second new authority, United States ex rel. Sansbury v. LB & B Associates, 58 F.
Supp. 3d 37 (D.D.C. 2014), is equally unavailing. It relied heavily on a previous case from this
district—United States ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 474 F. Supp.
2d 75 (D.D.C. 2007)—in suggesting that non-intervened claims are eligible for FCA tolling. But
Sansbury simply “[f]ollow[ed] the reasoning of Pogue” on this issue without offering additional
support for its holding. Sansbury, 58 F. Supp. 3d at 52. This Court fully appreciated, but ultimately
rejected, the Pogue approach in its earlier decision. See Mem. Op. of June 19, 2014, at 28–30. And
in any case, because the government had intervened in Sansbury, any commentary on the FCA’s
tolling provision in that case was dictum. See Sansbury, 58 F. Supp. 3d at 47, 51 n.4 (concluding
4
that this Court’s 2014 Memorandum Opinion “does not in any way impact the effect of the tolling
provision on claims for which the government has intervened”).
Relator next contends that the Court clearly erred in relying on the Supreme Court’s
decision in Graham County Soil & Water Conservation District v. United States ex rel. Wilson, 125
S. Ct. 2444 (2005), in explaining why it declined to follow Pogue. Graham County held that
§ 3731(b)(1)’s six-year limitations period does not apply to retaliation actions brought under
§ 3730(h), even though such a suit is “[a] civil action under section 3730.” Id. at 2453; 31 U.S.C.
§ 3731(b). It is therefore established that “Congress sometimes used th[at] term to refer only to a
subset of § 3730 actions.” Graham County, 545 U.S. at 2450. Since § 3731(b)(2) speaks of “the
official of the United States charged with responsibility to act in the circumstances,” this Court
inferred that it made scant sense to apply the FCA’s tolling provision to non-intervened claims.
Mem. Op. of June 19, 2014, at 30. Pogue drew a different conclusion, finding it highly significant
that “(b)(2) does not contain any negative words or words of exclusion” depriving relators of the
benefit of FCA tolling. Pogue, 474 F. Supp. 2d at 84. For present purposes, what matters is that
neither position is commanded by Graham County.3 As this Court recently emphasized, “[q]ualms
with the Court’s logic . . . are not fertile grounds for reconsideration.” Op. & Order of Mar. 7,
2016, at 5, ECF No. 495 (quoting Casey v. Ward, 67 F. Supp. 3d 54, 58 (D.D.C. 2015)) (internal
quotation marks omitted). Relator’s motion for reconsideration—one “based on” Carter, Sansbury,
and Graham County, Mot. Reconsideration 3—therefore falls short.
3
Relator’s current interpretation of Graham County clashes with his earlier, more modest view—
that the decision is “inapposite” because it “involved the Act’s six-year limitations period in section
3731(b)(1), rather than the tolling provision in section 3731(b)(2) which is at issue here.” Rel.’s
Opp’n CSE Defs.’ Mot. Dismiss 15–16 (“Rel.’s Opp’n”), ECF No. 115.
5
To buttress these points, Relator reiterates three arguments that the Court has already
rejected: (1) that applying different statutes of limitations to different FCA defendants in the same
case would create intolerable inequities, Mot. Reconsideration 4; (2) that the government should not
be forced to suffer adverse consequences from choosing to rely on a relator’s resources, id. at 10;
and (3) that the Court’s interpretation of § 3731(b)(2) would reduce the statute’s effectiveness as a
fraud-fighting tool, id. at 10. Though these points failed to convince the Court, Relator fully
articulated them in his opposition to the CSE Defendants’ motion to dismiss.4 Of course, “[t]he
purpose of a motion for reconsideration is not to repeat arguments which the Court has already
found unpersuasive.” Judicial Watch, Inc. v. U.S. Dep’t of Energy, 319 F. Supp. 3d 32, 34 (D.D.C.
2004). Relator has not explained why the Court ought to revisit these points now.
Relator has also advanced a new argument regarding the FCA tolling issue: that the United
States is the real party in interest in all qui tam cases (whether it intervenes or not), and that, under
the common law, a private assignee is subject to the same statute of limitations as its governmental
assignor. Mot. Reconsideration 8–9. As the Court has explained, however, “a motion for
reconsideration cannot be ‘a vehicle for presenting theories or arguments that could have been
advanced earlier.’” Op. & Order of Mar. 7, 2016, at 2 (quoting Loumiet v. United States, 65 F.
Supp. 3d 19, 24 (D.D.C. 2014)); see also Kennedy v. Dist. of Columbia, No. 13-cv-01384 (CRC),
2015 WL 7274027, at *3 (D.D.C. Nov. 16, 2015) (“A motion for reconsideration is emphatically
not the proper place to raise new legal arguments.”). The Court will therefore accord no weight to
this belatedly advanced contention.
4
See Rel.’s Opp’n 12 (decrying the “inequities that could result from having two different statutes
of limitations apply to intervened and non-intervened claims in the same case”); id. at 23 (warning
that the CSE Defendants’ interpretation would “constrain the Government’s ability to . . . take
advantage of relators and their resources”); id. (pressing an interpretation of § 3731(b)(2) that
would maximize the government’s ability “to combat fraud against the federal fisc”).
6
The Court’s earlier holding should not have come as a surprise, for it is “decidedly the
majority approach in the federal courts of appeals.” United States ex rel. Sanders v. N. Am. Bus
Indus., 546 F.3d 288, 296 (4th Cir. 2008). Other courts in this district have also declined to apply
the FCA’s tolling provision to non-intervened claims. See United States ex rel. Shemesh v. CA,
Inc., 89 F. Supp. 3d 36, 53 (D.D.C. 2015); United States ex rel. Fisher v. Network Software
Assocs., 180 F. Supp. 2d 192, 194 (D.D.C. 2002); United States ex rel. El Amin v. George
Washington Univ., 26 F. Supp. 2d 162, 173 (D.D.C. 1998). Because Relator has not met his burden
of persuading the Court to reconsider its initial interpretation of § 3731(b)(2), the Court will deny
his motion.
Finally, Relator has also moved the Court to clarify its Order of Dismissal on the CSE
Defendants’ Motion to Dismiss, fearing that the order “could be read as precluding the United
States from intervening in the case for ‘good cause’ pursuant to § 3730(c)(3).” Mot.
Reconsideration 13. The Court now clarifies that the following language—“all of relator’s claims
under the False Claims Act, 31 U.S.C. §§ 3729, et seq., against the CSE Defendants arising prior to
June 10, 2004 are DISMISSED WITH PREJUDICE,” Order of June 27, 2014, ECF No. 184—was
not intended to forbid the United States from intervening against the CSE Defendants in this case
upon a showing of good cause.
For the foregoing reasons, it is hereby
ORDERED that [497] Relator’s Motion for Reconsideration and Request for Clarification
be GRANTED IN PART and DENIED IN PART.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: June 8, 2016
7
Landis v. Tailwind Sports Corporation
Combined Opinion