NEW YORK (Legal Newsline) - A federal appeals court has reinstated a whistleblower lawsuit brought in 2008 against shipping company DHL Express.

Kevin Grupp and Robert Moll alleged DHL improperly billed the federal government for jet fuel surcharges on ground shipments. DHL had won dismissal at the trial court, the federal court in Buffalo, but on Feb. 5 the U.S. Court of Appeals for the Second Circuit reversed that ruling.

Judge Ralph Winter authored the opinion for the Second Circuit. He wrote that a rule that requires challenges to shipping disputes to be brought within 180 days does not apply to False Claims Act cases.

"Application of the 180-day rule would completely nullify the tolling allowance as the Government is often unlikely to become award of fraud immediately following the violation," Winter wrote.

"For similar reasons, the rule as understood by DHL, would pose an even more substantial obstacle to relators' ability to bring (whistleblower lawsuits)."

The whistleblowers are a pair of Erie County men who own and operate MVP Delivery and Logistics, Inc., a company hired by DHL as an independent contractor. The United States filed an amicus brief in support of the whistleblowers.

Their complaint alleges that DHL began misrepresenting that all air express packages would travel by air when many of them were being transported by DHL trucks.

As a result, the United States unfairly paid a jet fuel surcharge when it hired DHL, the complaint says.

The complaint does not specify the amount the United States is believed to have overpaid, though it does ask for damages under the False Claims Act.

Representing the two men are Daniel C. Oliverio, Joseph V. Sedita and John L. Sinatra, Jr. of Hodgson Russ in Buffalo, N.Y.

Representing the United States is the U.S. Attorney's Office in Buffalo.

U.S. District Judge John T. Curtin ruled for DHL in September 2012. Winter, Jose Cabranes and Debra Ann Livingston were the three Second Circuit judges assigned to the case.

From Legal Newsline: Reach editor John O'Brien at

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