You could practically hear Justice Scalia bombastically asking “So when will the United States not be at war?” earlier this week when the U.S. Supreme Court decided to grant cert in Kellogg Brown & Root Services, Inc. v. United States ex. rel. Carter, a case applying the Wartime Suspension of Limitations Act (WSLA) to the False Claims Act (FCA).  At issue is whether the WSLA suspends the statute of limitations for potentially hundreds of civil and criminal statutes while the United States is engaged in military conflicts like Afghanistan, Iraq and the like.

In Carter, an FCA case, the defendant allegedly fraudulently billed for services provided to the U.S. military in Iraq.  The defense countered that the case was barred by the statute of limitations.  The Fourth Circuit disagreed, finding that the WSLA applied to toll limitations.  It explained that the definition of “at war” under the WSLA included more than declared wars because the WSLA did not specifically require a declared war, the United States had not formally declared war since World War II, and the Supreme Court has previously applied laws of war to non-declared war.  Because Congress formally recognized the President’s authority to enter into armed hostilities against Iraq in 2002, the Fourth Circuit determined that the WSLA tolled limitations.  It also determined that the WSLA applies to both criminal and civil claims, including those brought by a relator when the government opts not to intervene.

Really?  In this day and age, does it make sense that the myriad armed conflicts in which the United States is engaged operate to toll limitations on civil and criminal statutes?

Not surprisingly, in its amicus brief, DOJ urged the Supremes to deny cert noting that there was no circuit split – the Fourth Circuit was the only court to have ruled on the issue.

Precisely because there was no circuit split, we’re here to tell you that the Supremes are going to reverse the Fourth Circuit and come up with an interpretation that makes a little more sense.  How they’re going to get there, short of Congress amending the statute and mooting the case in the intervening months, is going to make the Supremes’ decision in Bush v. Gore look tame.

Note that the WSLA’s termination clause requires that the President or Congress formally declare, through proclamation or a joint resolution, an end to U.S. Military involvement. This requirement also poses significant challenges, as the statute of limitations remains tolled indefinitely until the unlikely occurrence of a proclamation or joint resolution.

You heard it here first – the Supremes are going to put the kibosh on the WSLA.