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U.S. Not A "Party" To Whistleblower Cases When It Has Not Intervened, Supreme Court Says


In a unanimous decision in U.S. ex rel. Eisenstein v. City of N.Y. (June 8, 2009) (Thomas, J.), the Supreme Court held that, for purposes of determining whether a relator can take advantage of the extended deadline for filing a notice of appeal in cases in which the government is a "party," the United States is not a "party" to a qui tam action brought under the False Claims Act if it has not exercised its statutory authority to intervene. Although Eisenstein may appear merely to resolve a technical aspect of appellate procedure, it remains to be seen whether this holding will be interpreted broadly by extending it to a variety of contexts, for example, in discovery disputes and evidentiary rulings such as whether to admit exculpatory evidence, like government-authored emails, as party-opponent admissions.

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Brian C. Elmer
Retired Partner – Washington, D.C.