The case dates back to 2008, when the Justice Department opened an investigation into FedEx for conspiring with online pharmacies to illegally distribute prescription drugs. In major economic cases, it is not uncommon for the government to agree to delay the submission of an indictment while negotiating with the objective of the investigation enterprise. In cases where these negotiations may result in the statute of limitations, the government will only delay the indictment if the accused agrees to give the five-year limitation period. The government usually designs the toll agreement and submits it for signature by the defendants and their lawyers. Last week, a federal judge in the Eastern District of North Carolina struck down a toll agreement between the DOJ and the defendants and ruled that the government had violated the agreement by failing to give the defendant the agreed thirty-day deadline before filing the lawsuit. See United States before Bertie Ambulance Serv., Inc., no. 2:14-CV000053-E (October 8, 2015). Bertie Ambulance Service provides patients in eastern North Carolina with emergency transportation as well as transportation to non-emergency dialysis treatments. The government began reviewing Bertie in 2004 over the filing of false fees on Medicare and Medicaid payments and eventually claimed in its complaint that Bertie had regularly filed claims for services that were “medically unnecessary, not supported by a valid medical certification statement, or that were not eligible for reimbursement.” When the government informed Bertie of the investigation on 31 August 2010, it asked Bertie to accept the six-year limitation period and the parties finally concluded four toll agreements covering the period from 1 September 2010 to 29 August 2014. Bertie agreed to waive his statute of limitations, in exchange for the fact that the government “preceded the potential defendants thirty (30) days in advance before the United States filed a complaint for alleged government claims.” But the routine use of retroactive toll agreements would point out to me to allow an executive managing authority to use private contracts to decipher the essence of the limitation period, which effectively gives the Agency the power to completely repeal the statute if it were inclined to do so.
Could it be legal? Finally, I realized that even future toll agreements claim to repeal the statute. This may be normal with ordinary limitation periods, but 28 U.S.C§ 2462, as noted above, is not an ordinary limitation period.