On November 10, 2014, the Supreme Court granted the motion of the Solicitor General for leave to participate in oral argument as amicus curiae in Kellogg Brown & Root Services, Inc., et al. v. United States ex rel. Carter, No. 12-1497, a case we have been watching. To review, Kellogg Brown is the first case specifically addressing the False Claims Act (“FCA”) that the Court has accepted since its 2011 decision in Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885 (2011). The case asks the Court to decide two questions: first, whether the Wartime Suspension Limitations Act (“WSLA”) applies to toll the statute of limitations for a civil fraud claim when there is no formal declaration of war; and second, whether the FCA’s “first-to-file bar” allows relators to file duplicative claims so long as no prior claim is pending at the time of filing.

Characterizing the FCA as the “primary tool by which the federal government combats fraud” and the WSLA as being enacted to “improve the government’s ability to recover for frauds during wartime,” the United States in its amicus brief expressed its “substantial interest in the proper interpretation of both statutes.” With respect to the first question before the Court, the United States argued that the WSLA suspends the statute of limitations during times of war for “any offense,” which is not limited to crimes but rather includes civil violations of the FCA. The United States partially relied on legislative history in crafting its argument and explained that the fact that Congress removed language from the WSLA that applied the WSLA to offenses “now indictable under any existing statutes” demonstrates that Congress did not mean to limit the WSLA to criminal offenses. The United States’ brief further asserted that fraud during wartime threatens the public fisc whether prosecuted civilly or criminally.

With respect to the second question before the Supreme Court, the United States pointed to the statutory language prohibiting a person other than the government to intervene or bring a related action based on facts underlying a “pending action.” The inclusion of the word “pending,” argued the United States, shows that the “first-to-file bar” was not meant to apply to prevent related actions from being brought once the initial action is dismissed. The United States further stated that the “first-to-file bar” is meant to ensure that a relator in a pending action does not have his recovery diluted and that defendants do not face two or more simultaneous suits based on the same allegations; neither purposes are served by utilizing the bar to prevent a relator from filing a claim when the prior claim has been dismissed. To read the “first-to-file bar” in the manner urged by Petitioners would “treat[] the first-to-file bar as a draconian version of the public-disclosure bar[, which prevents parasitic suits based on public information], forever barring an FCA suit based on the same facts (even one brought by an original source) once the first suit has been dismissed.”

The Solicitor General’s participation in oral arguments before the Supreme Court has been shown to understandably influence the Court’s opinions in the past, leaving one to wonder if the same will be true in this pivotal case.