Sep 52014

Opening Brief Filed in Forthcoming Supreme Court Case Concerning Statute of Limitations & First to File Bar

Scott D. Stein
, ,

As we previously reported, the Supreme Court has agreed to hear argument next term in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. The case raises two issues of importance to FCA practitioners: (1) whether the Wartime Suspension of Limitations Act (WSLA) applies to toll the statute of limitations in civil FCA cases, and (2) whether the first-to-file bar ceases to apply once a first-filed case is settled or dismissed.

On August 29, the petitioners filed their opening brief. With regard to the statute of limitations issue, the petitioners argue that the WSLA should be narrowly construed and applied only to criminal cases. Furthermore, they note, “it is particularly inappropriate to apply the WSLA to qui tam actions, because the FCA contains a detailed limitations scheme that includes an absolute 10-year statute of repose.” With regard to the first-to-file bar, petitioners argue that the Fourth Circuit’s ruling, which interprets to bar to create a “one case at a time” rule, is contrary to the plain language of the statute. Furthermore, in allowing subsequent relators to file similar claims once a first-filed case has been dismissed, the Fourth Circuit’s interpretation fails to promote the bar’s “twin goals of encouraging prompt disclosure of valuable information about fraud, while discouraging opportunistic plaintiffs who do not contribute to the government’s knowledge of, or ability to pursue, fraud.”

A copy of the petitioners’ opening brief can be found here.

Scott D. Stein

Chicago

sstein@sidley.com

You might also like
Supreme Court Mulls Scope of DOJ Dismissal Authority

On December 6, 2022, the Supreme Court heard oral argument in United States ex rel. Polansky v. Executive Health Resources, which presents the question of whether the government has the authority to dismiss a qui tam suit after initially declining to intervene, and if so, what standard of review applies to the government’s motion to dismiss.  Overall, the lines of questioning suggest that the Court will conclude that the government may dismiss qui tam suits after initially declining to intervene.  However, there was no clear consensus around how to define a judicially enforceable standard for evaluating the government’s dismissal authority.

Supreme Court Declines to Address Application of 9(b) to the FCA

Yesterday the Supreme Court denied cert in a trio of cases seeking clarification as to the pleading standard required in FCA cases under Rule 9(b).  The petitioners urged the Court to remedy what they characterized as a circuit split over how much detail whistleblowers and the government must supply about alleged false claims in order to survive a motion to dismiss.  As discussed further here, the Solicitor General opposed these cert petitions and argued that the circuits have “largely converged” in their application of Rule 9(b) to FCA complaints.

A variety of reasons exist for why a cert petition may fail to garner the requisite number of votes, and in declining to hear these cases, it is not clear whether the Court is convinced that there is uniformity (or at least not significant discord) among the courts of appeal on this issue.

Supreme Court Grants Certiorari to Resolve Circuit Split on the Government’s Authority to Dismiss FCA Cases Over Relators’ Objections

On June 21, 2022, the Supreme Court granted certiorari to resolve a Circuit split on the standard for evaluating the government’s authority to dismiss a qui tam over the relator’s objection.  As we have previously written (see here and here), various Circuits have adopted different standards.  The Supreme Court has agreed to review a decision of the Third Circuit affirming a district court’s grant of the United States’ motion to dismiss a qui tam.