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

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.