The Supreme Court’s decision in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, No. 12-1497 (U.S. May 26, 2015) [pdf], holds that the Wartime Suspension of Limitations Act applies only to criminal offenses. It also holds that the first-to-file bar in the False Claims Act applies only when an earlier-filed action remains “pending.” The unanimous opinion, written by Justice Alito, takes a plain-meaning approach to both of the questions presented.
The Wartime Suspension of Limitations Act
Citing dictionary definitions of the word “offense” and the appearance of the WSLA in Title 18 of the U.S. Code, the Court inferred that Congress intended to toll the applicable statutes of limitations only in criminal cases. As to the removal of the phrase “now indictable” from the text of the WSLA in 1944, the Court found that such a subtle change does not prove that Congress intended to expand the tolling effect of the WSLA beyond criminal cases. “[T]he removal of the ‘now indictable’ provision was more plausibly driven by Congress’ intent to apply the WSLA prospectively, not by any desire to expand the WSLA’s reach to civil suits.”
Carter reverses the Fourth Circuit’s holding in United States ex rel. Carter v. Halliburton Co., 710 F.3d 171 (4th Cir. 2013) as to the scope of the WSLA.
The False Claims Act first-to-file bar
As to the scope of the first-to-file bar in the False Claims Act, the Court cited two dictionary definitions for the ordinary meaning of the word “pending.” Applying the ordinary meaning of this word, the Court concluded that “an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed.” The Court recognized that this interpretation might produce some “practical problems.” In particular, settling a qui tam case will be more difficult if it does not foreclose future litigation by other plaintiffs. But solving such problems will be left for another day. “The False Claims Act’s qui tam provisions present many interpretive challenges, and it is beyond our ability in this case to make them operate together like a finely tuned machine.”
Carter affirms the Fourth Circuit’s 2013 decision on the scope of the first-to-file bar. It emphatically rejects the approach to the first-to-file bar adopted in United States ex rel. Shea v. Cellco Partnership, 748 F.3d 338 (D.C. Cir. 2014), which held that that the phrase “pending action” was equivalent to “first-filed action.”