22-2656
United States ex rel. Weiner et al. v. Siemens AG et al.


                                                In the
                     United States Court of Appeals
                                  For the Second Circuit
                                           ______________

                                         August Term, 2022

                 (Argued: June 7, 2023            Decided: November 28, 2023)

                                       Docket No. 22-2656
                                      ____________________

UNITED STATES OF AMERICA EX REL. CLIFFORD WEINER, STATE OF NEW YORK EX REL.
                             CLIFFORD WEINER,

                                         Plaintiffs-Appellants,

                                                    v.

       SIEMENS AG, SIEMENS INDUSTRY, SIEMENS SCHLESINGER ELECTRIC, LLC,

                                         Defendants-Appellees. *

                                      ____________________

Before: CARNEY and ROBINSON, Circuit Judges. †




*
 The Clerk of Court is directed to amend the official case caption as set forth above.
†
 Circuit Judge Rosemary S. Pooler, originally a member of the panel, died on August 10, 2023.
The two remaining members of the panel, who are in agreement, have decided this case. See 

(d); 2d Cir. IOP E(b).
              The False Claims Act (“FCA”), 

–32, provides
       that when a private person brings an action under the FCA on behalf
       of the federal government, the “complaint shall be filed in camera,
       shall remain under seal for at least 60 days, and shall not be served on
       the defendant until the court so orders.” 

 § 3730(b)(2). Alleging
       violations of the FCA, Relator Clifford Weiner brought a complaint in
       the United States District Court for the Southern District of New York,
       which the district court (Carter, J.) dismissed for untimely service of
       process. Relator argues that because the district court never expressly
       ordered him to serve Defendants in accordance with Section 3730, the
       clock for service of process never began to run, and dismissal for
       untimely service was improper. Agreeing with Relator, we VACATE
       the district court’s judgment and REMAND the case for further
       proceedings consistent with this opinion.
                               ____________________

                            MAX RODRIGUEZ (Adam Pollock, Agatha M. Cole, on the
                            brief), Pollock Cohen LLP, New York, N.Y., for Relator

                            WENDY H. SCHWARTZ (Travis A. Gonyou, on the brief),
                            Binder & Schwartz LLP, New York, N.Y., for Defendants-
                            Appellees ‡
                                ____________________

Per curiam:

       The False Claims Act (“FCA”), 

–32, creates civil liability for

those who knowingly submit “a false or fraudulent claim for payment or

approval” to the federal government. 

(a)(1)(A). The FCA contains



‡
 Siemens AG, a foreign corporation, is also a named defendant in this case, but counsel for
Defendants-Appellees listed above assert that they do not represent Siemens AG, and no other
counsel has appeared on behalf of that entity.
                                                2
a qui tam provision, allowing private persons (known as relators) to file complaints

on the government’s behalf. 

 § 3730(b)(1); see generally State Farm Fire & Cas. Co.

v. United States ex rel. Rigsby, 

, 29 (2016). Section 3730 of the FCA

instructs that such a complaint “shall be filed in camera, shall remain under seal

for at least 60 days, and shall not be served on the defendant until the court so

orders.” 

(b)(2). It also provides that a defendant is not “required

to respond” to a qui tam complaint “until 20 days after the complaint is unsealed

and s