False Claims appeal is untimely

Any federal practitioner knows that you have 30 days from the adverse court ruling to file a notice of appeal. But there is a loophole: if the United States is a party to the lawsuit, you have 60 days to file the notice of appeal. That rule seems simple enough, but it isn't. Today the Court of Appeals dismisses an appeal because the notice of appeal was filed too late, and the 60 day exception doesn't apply.

The case is United States v. City of New York, decided on August 19. The plaintiff brought a False Claims Act (qui tam) case against New York City. The claim has to do with the City's requirement that non-resident employees pay a fee equivalent to the municipal income taxes paid by resident City-employees. In cases like this, the U.S. has the option of joining the lawsuit. It didn't. Here's the question: is there a way to take advantage of the 60-day notice of appeal rule if the U.S. did not join the case?

The Second Circuit says no. The deadline for filing a notice of appeal is set out in the Federal Rules of Appellate Procedure. Under the plain meaning of that rule, the U.S. is not a "party" to the case, because it declined to intervene in the lawsuit. So how does the plaintiff get around this? By arguing that the U.S. is the "real party in interest." This is a term of art. As the Second Circuit reminds us, "Generally, the ‘real party in interest’ is the one who, under the applicable substantive law, has the legal right which is sought to be enforced or is the party entitled to bring suit. . . . The use of the 'real party in interest,' as a term of art, permits courts to intelligibly discuss those instances in which an individual with a substantive right must appear as a party to
litigate a claim, and those instances in which another may appear in his stead.”

Nice try, says the Court of Appeals. The rule outlining the deadlines for notices of appeal carefully avoids such language as "real party in interest" in setting forth when the 60 day rule applies. We know this because that phrase appears elsewhere in the procedural rules. Moreover, the whole point in allowing a 60 day deadline when the U.S. government is a party is to accommodate the slow process by which the government decides whether to appeal. That is not a concern here since the U.S. did not join the case in the first instance.

The moral of the story is that the rules should be taken literally. The federal rules are no place to carve out unique exceptions to general principles of procedure. That's why there are few "legendary" cases interpreting the federal rules. As the Court of Appeals advises in this opinion, if there is any doubt in a case like this, file the notice of appeal within 30 days and bypass the procedural questions that would normally follow if the other party may reasonably argue that the rules were violated.