Eisenstein v. New York City

The Supreme Court has agreed to decide which time limit for the filing of a notice of appeal applies where the government is a named party to the action, but declines to intervene in the action in the district court.

Irwin Eisenstein and four New York City employees filed suit, arguing that it was unlawful for the city, as a condition of employment, to require non-resident city-employees to pay a fee equivalent to the municipal income taxes paid by resident city-employees. They claimed a violation of the False Claims Act.

The complaint initiates a qui tam action, in which the plaintiffs are to serve as relators, suing the city in the name of the United States. The United States declined to intervene.

In March 2006, a judge on the U.S. District Court for the Southern District of New York dismissed the action, and issued a final judgment the next month. Eisenstein filed notice of appeal on June 5, 2006, 53 days later.

In a civil case, notice of appeal must be filed within 30 days under the Federal Rule of Appelate Procedure 4(a)(1)(A). But when the United States is a party to the action, Rule 4(a)(1)(B) allows for any party in the action to take 60 days to file notice of appeal.

Eisenstein argued that the 60-day period should apply because the United States was the “real party in interest” in the case.

“The government played no role in this litigation until filing an amicus brief ordered by the court,” Circuit Judge Ralph Winter wrote. “Because we conclude that the United States is not a ‘party’ to this action for the purposes of Fed. R. App. P. 4(a)(1)(A) and (B), we further conclude that Eisenstein’s notice of appeal was untimely.”

The holding puts the court at odds with three other circuits -- the 5th, 7th and 9th. Only the 10th Circuit views the issue the same way as the 2nd Circuit.

On Jan. 16, the justices accepted the case for review.

Question presented: Whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) for filing a notice of appeal, or the 60-day time limit in Rule 4(a)(1)(B), applies to a qui tam action under the False Claims Act.

A unanimous Supreme Court ruled today on which time limit for the filing of a notice of appeal applies when the government is a named party to the action, but declines to intervene in the action in the district court.

Irwin Eisenstein and four New York City employees filed suit, arguing that it was unlawful for the city, as a condition of employment, to require non-resident city-employees to pay a fee equivalent to the municipal income taxes paid by resident city-employees. They claimed a violation of the False Claims Act.

The complaint initiates a qui tam action, in which the plaintiffs are to serve as relators, suing the city in the name of the United States. The United States declined to intervene.

In March 2006, a judge on the U.S. District Court for the Southern District of New York dismissed the action, and issued a final judgment the next month. Eisenstein filed notice of appeal on June 5, 2006, 53 days later.

In a civil case, notice of appeal must be filed within 30 days under the Federal Rule of Appelate Procedure 4(a)(1)(A). But when the United States is a party to the action, Rule 4(a)(1)(B) allows for any party in the action to take 60 days to file notice of appeal.

Eisenstein argued that the 60-day period should apply because the United States was the “real party in interest” in the case.

“The government played no role in this litigation until filing an amicus brief ordered by the court,” Circuit Judge Ralph Winter wrote. “Because we conclude that the United States is not a ‘party’ to this action for the purposes of Fed. R. App. P. 4(a)(1)(A) and (B), we further conclude that Eisenstein’s notice of appeal was untimely.”

The holding puts the court at odds with three other circuits -- the 5th, 7th and 9th. Only the 10th Circuit views the issue the same way as the 2nd Circuit.

On June 8, 2009, a unanimous Court affirmed the 2nd Circuit ruling in an opinion by Justice Clarence Thomas.

Question presented: Whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) for filing a notice of appeal, or the 60-day time limit in Rule 4(a)(1)(B), applies to a qui tam action under the False Claims Act.