The first to file bar is a limitation on the rights of members of the public to commence certain litigation under the FCA. In essence, the first to file bar prevents a member of the public from commencing an action based upon facts that have already been placed at issue in another piece of FCA litigation. Specifically, “[w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). The “subsection” being referenced in Section 3730(b)(5) permits members of the public to commence FCA litigation for violations of 31 U.S.C. § 3729 on their own behalf and on behalf of the Government.

The first to file bar has become a frequently used defense, along with the public disclosure bar, in cases in which a relator’s allegations involve facts that are duplicative to those that have been alleged in a previously filed FCA case. However, there has been dispute regarding the parameters of the first to file bar. Specifically, some have argued that the first to file bar precludes subsequent litigation even if the initial litigation was dismissed; whereas others have asserted that the first to file bar applies only if the prior litigation involving the same facts remains pending.

In the case of Kellogg Brown & Root Services, Inc. v. United, which was previously discussed in this blog, the United States Supreme Court specifically addressed this issue. The Supreme Court considered the divergent positions on the first to file bar and analyzed the statutory text and concluded that the first to file bar applies only if the first filed litigation remains pending. The Supreme Court’s holding was predicated on the inclusion of the word “pending” in Section 3730(b)(5). This decision means that relator’s will not be barred under Section 3730(b)(5) for filing claims with factual allegations that are duplicative of a previously filed, but dismissed, FCA action. However, other defenses, such as the public disclosure bar, may serve to preclude such a subsequent claim.