The Tenth Circuit's detailed opinion and reasoning in United States ex rel. Little v. Triumph Gear Sys., Inc., No.16-4152, 2017 WL 4105933 (10th Cir. Sept. 18, 2017) is welcome news for False Claims Act (“FCA”) defendants confronting creative attempts by relators seeking to circumvent the FCA's all-important “first-to-file” bar. The audacious nature of the specific tactics employed by the relators in Little may be at the extreme end of the spectrum, but the Tenth Circuit's analysis re-establishes clear principles that should have broader impact and serve to rein in relator excesses. In Little, two would-be relators—including Little, who was the lawyer for the sole relator in a pending qui tam action—effectively highjacked the original relator's action and sought to pursue the same claims with the original relator vanishing from the scene. While the district court held that this maneuver—however unsavory—was not blocked by the “first-to-file” bar on the theory that the bar only applied to Rule 24 interventions, the Tenth Circuit accepted the case for interlocutory appeal and reversed, methodically and emphatically rejecting each of the myriad arguments relators advanced in an effort to salvage their case. In so doing, the court issued important rulings with respect to the interplay between Rule 15 amendments and the “first-to-file” bar, as well as the propriety of “John Doe” relator claims.

Background in Little

The first hint of something irregular about this qui tam action comes from the case caption itself. While currently styled as U.S. ex rel. Little v. Triumph, it did not begin that way. In fact, the original qui tam complaint was filed solely by a different relator, Joe Blyn, and appropriately styled as such (i.e., U.S. ex rel. Blyn v. Triumph). That initial complaint, filed under seal in the District of Utah in 2012, named Donald Little as Blyn’s lawyer. While the case remained under seal, Little and another person, Kurosh Motaghed, filed an amended complaint naming themselves as the relators and adopting wholesale the very same allegations raised by Blyn, who—as the Tenth Circuit noted—simply “vanished” from the action. As the Tenth Circuit observed:

Inexplicably, in several instances, Little seems to have simply substituted his name for Blyn’s without regard for the resulting incongruities. For example, [one paragraph] of the complaint alleges that “[o]n September 6, 2006, Relator Joseph Blyn went down to heat treat and verified in person that the inspection requirements for gear inspection” were “not being carried out.” [Later,] the amended complaint makes an identical allegation, but substitutes attorney Little for Blyn.

Little, 2017 WL 4105933, at *1. After the government declined to intervene and the action was unsealed, Triumph moved to dismiss, arguing that Little and Motaghed had effectively intervened in a pending qui tam action and, as a consequence, their claims were barred by the FCA’s first-to-file rule, which provides:

When 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). Ultimately, the district court reasoned that Little and Motaghed entered the action via a permissive Rule 15 amendment, a procedural route that does not fall within the prohibition of section 3730(b)(5). However, the district court granted Triumph’s request that the question be certified for interlocutory review and the Tenth Circuit agreed to hear the case.

On appeal, Triumph argued again that Little and Motaghed were de facto intervenors in Blyn’s action and that the “first-to-file” bar is intended to prevent exactly the sort of second-in-time parasitic suit that Little and Motaghed were seeking to pursue. Triumph also argued that Rule 15 did not apply under these circumstances, nor was there any legal merit to Little and Motaghed’s argument that they were never added to the action because they were named as “John Does” in Blyn’s original action and merely disclosed their identities in the amended complaint.

The Tenth Circuit’s Decision

After leading off its decision by describing the FCA’s provisions as a “procedural minefield,” the Tenth Circuit recognized that the first-to-file bar precludes anyone except the government from “interven[ing]” in a pending action under any circumstances. The court went on to rule that Little’s and Motaghed’s efforts to enter the action through an amended complaint under Rule 15 of the Federal Rules of Civil Procedure failed for numerous reasons, including the fact that only a “party” to an action can amend it and there was no evidence that Blyn had done so. In the end, the court was puzzled by relators’ machinations, noting that it remained “unclear what procedural mechanism Little and Motaghed employed to enter the action” and finding no grounds for their filing their amended complaint, prompting the court to write:

Yet amend it they did. The docket sheet indicates that the amended complaint was “filed by Donald Little [and] Kurosh Motaghed.” The original complaint, by contrast, was “filed by Joe Blyn.” Nothing in the amended complaint indicates that Blyn filed it—or that he was even aware of it. His name appears nowhere in it. In fact, the complaint’s Blynspecific allegations morph into allegations about Little in the amended complaint. And Blyn didn’t file a notice to the court or a motion of any kind. He simply disappeared from the action.

2017 WL 4105933, at *4 (noting that in United States ex rel. Precision Co. v. Koch Industries, Inc., 31 F.3d 1015 (10th Cir. 1994), the Circuit had created a narrow exception to the bar that allowed a corporation to “add” two sole stockholders as relators under Rule 15, but finding that this exception, if still good law in view of the Supreme Court’s holding in United States ex rel. Eisenstein v. City of New York, 556 U.S. 928 (2009), was inapplicable here because that method requires a “party” to amend the complaint). 

In an attempt to bypass the entire first-to-file analysis, Little and Motaghed contended that the rule did not apply to them because they were, in fact, co-relators of Blyn in the original action. Their argument stemmed from the reference to three “John Does” in Blyn’s original complaint. According to relators, they never were “added” to the action, but they merely revealed their identities via the amended complaint. But the Tenth Circuit dispensed with that theory, never having to decide—in the face of Triumph’s challenge—whether in fact there was evidence to support their assertion. The court held that the Federal Rules of Civil Procedure “make no provision for suits by persons using fictitious names or for anonymous plaintiffs.” As a result, even if Little and Motaghed could have established that they were “John Does,” no action had commenced with respect to them absent district court permission to proceed in that status— which they never sought—or until they revealed their identities. As a result, when they first proceeded in their own names as relators in the amended complaint, they were considered—for first-to-file purposes— to be second-in-time relators.

Likewise, the court rejected relators’ attempts to argue that they should be permitted to proceed under Rule 17, which authorized them to substitute themselves as the real party in interest, finding the argument was raised too late and without merit in any event. Similarly, the court rebuffed relators’ bizarre contention that the action could not be dismissed without the Attorney General’s consent under 31 U.S.C. § 3730(b)(1), pointing out that the prohibition in that section applies only to voluntary dismissals by the relator, and has no application where dismissal follows a defense motion.

Relators also sought to have the Tenth Circuit dismiss the appeal on the grounds that the first-to-file rule is not jurisdictional and therefore the question certified for interlocutory appeal did not involve a controlling question of law. But the Tenth Circuit did not take the bait. Finding that interlocutory review was appropriate because the decision advanced the ultimate termination of the litigation, the court declined to revisit its prior ruling that the first-to-file bar is jurisdictional. 2017 WL 4105933, at *7 (declining to reach the question of whether the Supreme Court’s decision in Gonzalez v. Thaler, 565 U.S. 134 (2012), superseded the Circuit’s previous holding in Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276 (10th Cir. 2004), that the bar “is a jurisdictional limit on the courts’ power to hear certain duplicative qui tam suits”).

Finally, the court denied relators’ proposed motion to amend the third amended complaint to rename Blyn as a plaintiff, ruling that under 28 U.S.C. § 1653, defective allegations may be amended where jurisdiction actually exists, but amendments cannot cure “defects in the jurisdictional facts themselves.” 2017 WL 4105933, at *7. The court agreed with Triumph that, here, the proposed amended complaint—not the original complaint—had to be the basis for making the jurisdictional determination as to the relators’ claims. Because the court’s jurisdiction over the original complaint was irrelevant as to whether the court had jurisdiction over the relators’ amended complaint, they could not use 28 U.S.C. § 1653 to create jurisdiction for their amended complaint. Id. at *8 (citing Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007)).


The Tenth Circuit decision strengthens the effectiveness of the first-to-file bar by precluding certain relator attempts to circumvent its application. The decision also opens the door to arguments that the Tenth Circuit’s decision in Precision—which enabled certain related party relators to be added to a qui tam action by Rule 15 amendment—is no longer good law in light of the Supreme Court’s broad definition of intervention in Eisenstein. Finally, the decision is a clear warning to relators that future attempts to proceed with a qui tam action on a “John Doe” basis may have severe consequences.