UNITED STATES ex rel. EISENSTEIN v. CITY OF NEW YORK, NEW YORK, et al.

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928 OCTOBER TERM, 2008
Syllabus
UNITED STATES ex rel. EISENSTEIN v. CITY OF
NEW YORK, NEW YORK, et al.
certiorari to the united states court of appeals for
the second circuit
No. 08–660. Argued April 21, 2009—Decided June 8, 2009
Petitioner filed this qui tam action in the name of the United States
against respondent city and several of its officials under the False
Claims Act (FCA), 31 U. S. C. § 3729. The Government declined to ex
ercise its statutory right to intervene, the District Court dismissed the
complaint and entered judgment for respondents, and petitioner filed a
notice of appeal 54 days later. Federal Rule of Appellate Procedure
4(a)(1)(A) and 28 U. S. C. § 2107(a) require, generally, that such a notice
be filed within 30 days of the entry of judgment, but Rule 4(a)(1)(B) and
§ 2107(b) extend the period to 60 days when the United States is a
“party.” The Second Circuit held that the 30-day limit applied and dis
missed petitioner’s appeal as untimely.
Held: When the United States has declined to intervene in a privately
initiated FCA action, it is not a “party” to the litigation for purposes of
either § 2107 or Rule 4. Because petitioner’s time for filing a notice of
appeal in this case was therefore 30 days, his appeal was untimely.
Pp. 931–937.
(a) Although the United States is aware of and minimally involved in
every FCA action, it is not a “party” thereto unless it has brought the
action or exercised its statutory right to intervene in the case. Indeed,
intervention is the requisite method for a nonparty to become a party.
See Marino v. Ortiz, 484 U. S. 301, 304. To hold otherwise would ren
der the FCA’s intervention provisions superfluous, contradicting the re
quirement that statutes be construed in a manner that gives effect to
all their provisions, see, e. g., Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 166. The FCA expressly gave the United States
discretion to intervene in FCA actions, and the Court cannot disregard
that congressional assignment of discretion by designating the United
States a “party” even after it has declined to assume the rights and
burdens attendant to full party status. Pp. 931–934.
(b) Petitioner’s arguments for designating the United States a party
in all FCA actions are unconvincing. First, neither the United States’
“real party in interest” status, see Fed. Rule Civ. Proc. 17(a), nor the
requirement that an FCA action be “brought in the name of the Govern
ment,” 31 U. S. C. § 3730(b)(1), converts the United States into a “party”

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where, as here, it has declined to bring the action or intervene. Second,
the Government’s right to receive pleadings and deposition transcripts
when it declines to intervene, see § 3730(c)(3), does not support, but
weighs against, petitioner’s argument: If the United States were a party
to every FCA suit, it would already be entitled to such materials under
Federal Rule of Civil Procedure 5. Third, the fact that the United
States is bound by the judgment in all FCA actions regardless of
its participation in the case is not a legitimate basis for disregarding
the statute’s intervention scheme. Finally, given that Rule 4(a)(1)(B)
hinges its 60-day time limit on the United States’ “party” status, peti
tioner’s contention that the limit’s underlying purpose would be best
served by applying it in every FCA case is unavailing. Pp. 934–937.
540 F. 3d 94, affirmed.
Thomas, J., delivered the opinion for a unanimous Court.
Gideon A. Schor argued the cause for petitioner. With
him on the briefs was Lewis D. Zirogiannis.
Paul T. Rephen argued the cause for respondents. With
him on the brief were Michael A. Cardozo, Leonard J.
Koerner, and Andrew G. Lipkin.
Jeffrey B. Wall argued the cause pro hac vice for the
United States as amicus curiae urging affirmance. With
him on the brief were Solicitor General Kagan, Acting As
sistant Attorney General Hertz, Deputy Solicitor General
Stewart, and Douglas N. Letter.*
Justice Thomas delivered the opinion of the Court.
The question presented is whether the 30-day time limit to
file a notice of appeal in Federal Rule of Appellate Procedure
4(a)(1)(A) or the 60-day time limit in Rule 4(a)(1)(B) applies
when the United States declines to formally intervene in a
qui tam action brought under the False Claims Act (FCA),
31 U. S. C. § 3729. The United States Court of Appeals for
the Second Circuit held that the 30-day limit applies. We
affirm.
*Briefs of amici curiae urging reversal were filed for the Taxpayers
Against Fraud Education Fund by Joseph E. B. White; and for Patricia
Haight et al. by Jeremy L. Friedman.

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930 UNITED STATES ex rel. EISENSTEIN v. CITY OF
NEW YORK
Opinion of the Court
I
Petitioner Irwin Eisenstein and four New York City (City)
employees filed this lawsuit against the City to challenge a
fee charged by the City to nonresident workers. They con
tended, inter alia, that the City deprived the United States
of tax revenue that it otherwise would have received if the
fee had not been deducted as an expense from the workers’
taxable income. In their view, this violated the FCA, which
creates civil liability for “[a]ny person who . . . knowingly
presents, or causes to be presented, to an officer or employee
of the United States Government . . . a false or fraudulent
claim for payment or approval.” § 3729(a)(1). Although the
United States is a “real party in interest” in a case brought
under the FCA, Fed. Rule Civ. Proc. 17(a), an FCA action
does not need to be brought by the United States. The
FCA also allows “[a] person [to] bring a civil action for a
violation of section 3729 for the person and for the United
States Government.” § 3730(b)(1). In a case brought by a
person rather than the United States, the FCA grants the
United States 60 days to review the claim and decide
whether it will “elect to intervene and proceed with the ac
tion.” § 3730(b)(2). After reviewing the complaint in this
case, the United States declined to intervene but requested
continued service of the pleadings. The United States took
no other action with respect to the litigation. The District
Court subsequently granted respondents’ motion to dismiss
the complaint and entered final judgment in their favor.
Petitioner filed a notice of appeal 54 days later. While the
appeal was pending, the Court of Appeals sua sponte or
dered the parties to brief the issue whether the notice of
appeal had been timely filed. Federal Rules of Appellate
Procedure 4(a)(1)(A)–(B) and 28 U. S. C. §§ 2107(a)–(b) gener
ally require that a notice of appeal be filed within 30 days of
the entry of judgment but extend the period to 60 days when
“the United States or an officer or agency thereof is a party,”
§ 2107(b). Petitioner argued that his appeal was timely filed

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under the 60-day limit because the United States is a “party”
to every FCA suit. Respondents countered that the appeal
was untimely under the 30-day limit because the United
States is not a party to an FCA action absent formal inter
vention or other meaningful participation.
The Court of Appeals agreed with respondents that the
30-day limit applied and dismissed the appeal as untimely.
See 540 F. 3d 94 (CA2 2008). We granted certiorari, 555
U. S. 1131 (2009), to resolve division in the Courts of Appeals
on the question,1 and now affirm.
II
A party has 60 days to file a notice of appeal if “the United
States or an officer or agency thereof is a party” to the ac
tion. See § 2107(b) (“In any such [civil] action, suit or pro
ceeding in which the United States or an officer or agency
thereof is a party, the time as to all parties shall be sixty
days from such entry [of judgment]”); Fed. Rule App. Proc.
4(a)(1)(B) (“When the United States or its officer or agency
is a party, the notice of appeal may be filed by any party
within 60 days after the judgment or order appealed from
is entered”). Although the United States is aware of and
minimally involved in every FCA action, we hold that it is
not a “party” to an FCA action for purposes of the appellate
filing deadline unless it has exercised its right to intervene
in the case.2
1 Compare Rodriguez v. Our Lady of Lourdes Medical Center, 552 F. 3d
297, 302 (CA3 2008); United States ex rel. Lu v. Ou, 368 F. 3d 773, 775
(CA7 2004); United States ex rel. Russell v. Epic Healthcare Mgmt. Group,
193 F. 3d 304, 308 (CA5 1999); United States ex rel. Haycock v. Hughes
Aircraft Co., 98 F. 3d 1100, 1102 (CA9 1996), with United States ex rel.
Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588 F. 2d 1327, 1329
(CA10 1978) (per curiam).
2 This does not mean that the United States must intervene before it
can appeal any order of the court in an FCA action. Under the
collateral-order doctrine recognized by this Court in Cohen v. Beneficial
Industrial Loan Corp., 337 U. S. 541, 546–547 (1949), the United States

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932 UNITED STATES ex rel. EISENSTEIN v. CITY OF
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Opinion of the Court
A
The FCA establishes a scheme that permits either the At
torney General, § 3730(a), or a private party, § 3730(b), to ini
tiate a civil action alleging fraud on the Government. A pri
vate enforcement action under the FCA is called a qui tam
action, with the private party referred to as the “relator.”
Vermont Agency of Natural Resources v. United States ex
rel. Stevens, 529 U. S. 765, 769 (2000). When a relator initi
ates such an action, the United States is given 60 days to
review the claim and decide whether it will “elect to inter
vene and proceed with the action,” §§ 3730(b)(2), (b)(4); see
also § 3730(c)(3) (permitting the United States to intervene
even after the expiration of the 60-day period “upon a show
ing of good cause”).
If the United States intervenes, the relator has “the right
to continue as a party to the action,” but the United States
acquires the “primary responsibility for prosecuting the ac
tion.” § 3730(c)(1). If the United States declines to inter
vene, the relator retains “the right to conduct the action.”
§ 3730(c)(3). The United States is thereafter limited to exer
cising only specific rights during the proceeding. These
rights include requesting service of pleadings and deposi
tion transcripts, § 3730(c)(3), seeking to stay discovery that
“would interfere with the Government’s investigation or
prosecution of a criminal or civil matter arising out of the
same facts,” § 3730(c)(4), and vetoing a relator’s decision to
voluntarily dismiss the action, § 3730(b)(1).
Petitioner nonetheless asserts that the Government is a
“party” to the action even when it has not exercised its right
may appeal, for example, the dismissal of an FCA action over its objection.
See 31 U. S. C. § 3730(b)(1); see also § 3730(c)(3); Marino v. Ortiz, 484 U. S.
301, 304 (1988) (per curiam) (noting that “denials of [motions to intervene]
are, of course, appealable”). In such a case, the Government is a party
for purposes of appealing the specific order at issue even though it is not
a party for purposes of the final judgment and Federal Rule of Appellate
Procedure 4(a)(1)(B).

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to intervene. We disagree. A “party” to litigation is “[o]ne
by or against whom a lawsuit is brought.” Black’s Law Dic
tionary 1154 (8th ed. 2004). An individual may also become
a “party” to a lawsuit by intervening in the action. See id.,
at 840 (defining “intervention” as “[t]he legal procedure by
which . . . a third party is allowed to become a party to the
litigation”). As the Court long ago explained, “[w]hen the
term [to intervene] is used in reference to legal proceedings,
it covers the right of one to interpose in, or become a party
to, a proceeding already instituted.” Rocca v. Thompson,
223 U. S. 317, 330 (1912) (emphasis added). The Court has
further indicated that intervention is the requisite method
for a nonparty to become a party to a lawsuit. See Marino
v. Ortiz, 484 U. S. 301, 304 (1988) (per curiam) (holding that
“when [a] nonparty has an interest that is affected by the
trial court’s judgment . . . the better practice is for such a
nonparty to seek intervention for purposes of appeal” be
cause “only parties to a lawsuit, or those that properly be
come parties, may appeal an adverse judgment” (internal
quotation marks omitted; emphasis added)). The United
States, therefore, is a “party” to a privately filed FCA action
only if it intervenes in accordance with the procedures estab
lished by federal law.
To hold otherwise would render the intervention provi
sions of the FCA superfluous, as there would be no reason
for the United States to intervene in an action in which it is
already a party. Such a holding would contradict well
established principles of statutory interpretation that re
quire statutes to be construed in a manner that gives effect
to all of their provisions. See, e. g., Cooper Industries, Inc.
v. Aviall Services, Inc., 543 U. S. 157, 166 (2004); Dole Food
Co. v. Patrickson, 538 U. S. 468, 476–477 (2003). Congress
expressly gave the United States discretion to intervene in
FCA actions—a decision that requires consideration of the
costs and benefits of party status. See, e. g., Fed. Rule Civ.
Proc. 26(a) (requiring a party to disclose certain information

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Opinion of the Court
without awaiting any discovery request); Rule 34 (imposing
obligations on parties served with requests for production
of information); Rule 37 (providing for sanctions for noncom
pliance with certain party obligations). The Court cannot
disregard that congressional assignment of discretion by des
ignating the United States a “party” even after it has de
clined to assume the rights and burdens attendant to full
party status.3
B
Petitioner’s arguments that the United States should be
designated a party in all FCA actions irrespective of its deci
sion to intervene are unconvincing. First, petitioner points
to the United States’ status as a “real party in interest” in
an FCA action and its right to a share of any resulting dam
ages. See Fed. Rule Civ. Proc. 17(a); Vermont Agency of
Natural Resources, supra, at 772; see also 6A C. Wright,
A. Miller, & M. Kane, Federal Practice and Procedure § 1545,
pp. 351–353 (2d ed. 1990) (“[W]hen there has been . . . a par
tial assignment the assignor and the assignee each retain an
interest in the claim and are both real parties in interest”).
But the United States’ status as a “real party in interest”
in a qui tam action does not automatically convert it into
a “party.”
The phrase, “real party in interest,” is a term of art uti
lized in federal law to refer to an actor with a substantive
right whose interests may be represented in litigation by
3 This Court’s decision in Devlin v. Scardelletti, 536 U. S. 1 (2002), is not
to the contrary. There, the Court held that in a class-action suit, a class
member who was not a named party in the litigation could appeal the
approval of a settlement without formally intervening. See id., at 6–14.
But the Court’s ruling was premised on the class-action nature of the suit,
see id., at 10–11, and specifically noted that party status depends on “the
applicability of various procedural rules that may differ based on context,”
id., at 10. For the reasons explained above, we conclude that in the spe
cific context of the FCA, intervention is necessary for the United States
to obtain status as a “party” for purposes of Rule 4(a)(1)(B).

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another. See, e. g., Fed. Rule Civ. Proc. 17(a); see also Cts.
Crim. App. Rule Prac. & Proc. 20(b), 44 M. J. LXXII (1996)
(“When an accused has not been named as a party, the ac
cused . . . shall be designated as the real party in interest”);
Black’s Law Dictionary, supra, at 1154 (defining a “real party
in interest” as “[a] person entitled under the substantive law
to enforce the right sued upon and who generally . . . benefits
from the action’s final outcome”). Congress’ choice of the
term “party” in Rule 4(a)(1)(B) and § 2107(b), and not the
distinctive phrase, “real party in interest,” indicates that the
60-day time limit applies only when the United States is an
actual “party” in qui tam actions—and not when the United
States holds the status of “real party in interest.” Cf. Barn
hart v. Sigmon Coal Co., 534 U. S. 438, 452 (2002) (“[W]hen
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” (internal
quotation marks omitted)). Consequently, when, as here, a
real party in interest has declined to bring the action or in
tervene, there is no basis for deeming it a “party” for pur
poses of Rule 4(a)(1)(B).
We likewise reject petitioner’s related claim that the
United States’ party status for purposes of Rule 4(a)(1)(B) is
controlled by the statutory requirement that an FCA action
be “brought in the name of the Government.” 31 U. S. C.
§ 3730(b)(1). A person or entity can be named in the caption
of a complaint without necessarily becoming a party to the
action. See 5A C. Wright & A. Miller, Federal Practice and
Procedure § 1321, p. 388 (3d ed. 2004) (“[T]he caption is not
determinative as to the identity of the parties to the action”).
And here, it would make little sense to interpret the naming
requirement of § 3730(b)(1) to dispense with the specific pro
cedures for intervention provided elsewhere in the statute.
Second, petitioner relies on the Government’s right to re
ceive pleadings and deposition transcripts in cases where it

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Opinion of the Court
declines to intervene, see § 3730(c)(3). But the existence of
this right, if anything, weighs against petitioner’s argument.
If the United States were a party to every FCA suit, it
would already be entitled to such materials under Federal
Rule of Civil Procedure 5, thus leaving no need for a sepa
rate provision preserving this basic right of litigation for
the Government.
Third, petitioner relies on the fact that the United States
is bound by the judgment in all FCA actions regardless of its
participation in the case. But this fact is not determinative;
nonparties may be bound by a judgment for a host of differ
ent reasons. See Taylor v. Sturgell, 553 U. S. 880, 893–895
(2008) (describing “six established categories” in which a
nonparty may be bound by a judgment); see also Restate
ment (Second) of Judgments § 41(1)(d), p. 393 (1980) (noting
that a nonparty may be bound by a judgment obtained by a
party who, inter alia, is “[a]n official or agency invested by
law with authority to represent the person’s interests”). If
the United States believes that its rights are jeopardized by
an ongoing qui tam action, the FCA provides for interven
tion—including “for good cause shown” after the expiration
of the 60-day review period. The fact that the Government
is bound by the judgment is not a legitimate basis for disre
garding this statutory scheme.
Finally, petitioner contends that the underlying purpose
of the 60-day time limit would be best served by applying
Rule 4(a)(1)(B) in every FCA case. The purpose of the ex
tended 60-day limit in cases where the United States is a
party, he claims, is to provide the Government with sufficient
time to review a case and decide whether to appeal. Peti
tioner contends that, even in cases where the Government
did not intervene before the district court issued its decision,
the Government may want to intervene for purposes of ap
peal, and should have the full 60 days to decide. But regard
less of the purpose of Rule 4(a)(1)(B) and the convenience
that additional time may provide to the Government, this

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Court cannot ignore the Rule’s text, which hinges the appli
cability of the 60-day period on the requirement that the
United States be a “party” to the action.4
III
We hold that when the United States has declined to inter
vene in a privately initiated FCA action, it is not a “party”
to the litigation for purposes of either § 2107 or Federal Rule
of Appellate Procedure 4. Because petitioner’s time for fil
ing a notice of appeal in this case was therefore 30 days, his
appeal was untimely. The judgment of the Court of Appeals
is affirmed.
It is so ordered.
4 Petitioner contends that the uncertainty regarding Rule 4(a)(1)(B) has
created a “tra[p] for the unwary,” and that our decision will unfairly punish
those who relied on the holdings of courts adopting the 60-day limit in
cases in which the United States was not a party. See Brief for Petitioner
25–27 (internal quotation marks omitted). As an initial matter, it is un
clear how many pending cases are implicated by petitioner’s concern as
such cases would have to involve parties who waited more than 30 days
to appeal from the judgment in an FCA case in which the United States
declined to intervene. But to the extent that there are such cases, the
Court must nonetheless decide the jurisdictional question before it irre
spective of the possibility of harsh consequences. See Torres v. Oakland
Scavenger Co., 487 U. S. 312, 318 (1988) (“We recognize that construing
Rule 3(c) [of the Federal Rules of Appellate Procedure] as a jurisdictional
prerequisite leads to a harsh result in this case, but we are convinced that
the harshness of our construction is ‘imposed by the legislature and not
by the judicial process’ ” (quoting Schiavone v. Fortune, 477 U. S. 21, 31
(1986))).