The Ninth Circuit recently found itself in the difficult position of having to dismiss an appeal that under its own precedent, was timely when filed, but became untimely after an intervening Supreme Court decision.

The plaintiffs brought a qui tam action against a researcher who allegedly made false statements to obtain funding from the federal government. (United States ex rel. Haight v. Catholic Healthcare West, No. 07-16857 (9th Cir. Feb. 4, 2010).) Qui tam is a fancy Latin phrase for a private enforcement action alleging fraud on the government.

The United States has a statutory right to intervene in qui tam actions, but it declined to do so here. The district court entered judgment for defendants, and the plaintiffs filed a notice of appeal 51 days later. But, you say, the time to appeal in federal court is only 30 days? Ordinarily true. But when the federal government is a “party,” the appellant has 60 days – not 30 – within which to appeal. (FRAP 4(1)(1)(B).) Under then-existing Ninth Circuit precedent, the government was a “party” to a qui tam – thereby allowing appeal within 60 days – even if it had declined to intervene. (Haycock v. Hughes Aircraft Co., (9th Cir. 1996) 98 F.3d 1100.)

But the U.S. Supreme Court recently held otherwise. Resolving a circuit split, it concluded that when the government declines to intervene, the shorter, 30 day, time to appeal applies. (United States ex rel. Eisenstein v. City of New York, New York (2009) 129 S. Ct. 2230.) The high court, while sympathetic to those who had relied on jurisdictions adopting the longer limit, deemed itself compelled to decide the jurisdictional question “irrespective of the possibility of harsh consequences.” (129 S. Ct. at 2236 n.4.) The Ninth Circuit strove mightily to avoid what it called this “inequitable” result, before it finally, relucantly, bowed to the inevitable.