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According to the Court of Appeals for the District of Columbia Circuit, False Claims Act claims added by the government when it intervened in a qui tam action were barred by the FCA's statute of limitations because the claims did not relate back to the relator's original complaint. The relator, an officer of a construction company that was a partner in several joint ventures, alleged the joint venture partners and related corporations conspired to rig bids on a contract, funded by the United States Agency for International Development, to construct sewers in Cairo, Egypt. After keeping the relator's complaint sealed while conducting criminal investigations and prosecutions, the government intervened and, "several years" after the FCA's six-year statute of limitations had run, charged the defendants with participating in an overarching conspiracy. The government adopted the relator's claims on the Cairo sewer contract and added claims related to contracts to construct a wastewater treatment plant near Cairo and sewers in Alexandria. A jury found the defendants guilty on all counts, and the district court awarded treble damages and penalties. Although the FCA did not address relation back, the district court held the FCA implicitly permitted an otherwise untimely claim to relate back under the Federal Rule of Civil Procedure 15(c)(1)(B) standard for amendments of pleadings. According to the district court, the government's additional FCA claims related back to the relator's initial complaint and were timely (563 F Supp 2d 54).

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After the trial, the Fraud Enforcement and Recovery Act of 2009 (PL 111-21) amended the FCA to include a relation back provision applicable to "cases pending on the date of enactment." On appeal, the DC Circuit applied the amendment because it found no grounds to except pending cases in which the government had intervened before the date of enactment. As amended by FERA, government FCA claims relate back to the relator's complaint to the extent they arise "out of the conduct, transactions, or occurrences" alleged in the original complaint (31 USC 3731(c)). The DC Circuit characterized this standard as "substantively identical" to the Rule 15 standard but concluded the government's additional claims did not meet it. The three contracts involved different projects and were awarded in different years to different winning bidders drawn from different pools of prequalified bidders. Thus, the allegations concerning the first contract did not encompass the other two contracts because "each contract [was] unique and no two involved the same conduct, transaction[], or occurrence[].'" The relator's amendments to add claims for the additional contracts were also barred because the FCA's relation back provision applied only to government pleadings, and the amendments would have to meet the substantially same standard under Rule 15. However, the government's claims concerning the Cairo sewer contract related back to the relator's original timely complaint and were not barred. (U.S. ex rel. Miller, et al. v. Bill Harbert Int'l Construction, Inc., et al., CA-DC, 54 CCF ¶79,361)