The American Hospital Association (AHA) recently filed a joint amicus curiae brief with several other associations, including the American Medical Association and the Pharmaceutical Research and Manufacturers of America, requesting that the U.S. Supreme Court overturn the Fourth Circuit’s decision in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, in which the Fourth Circuit ruled that the Wartime Suspension of Limitations Act (WSLA) applies to whistleblower suits, even if unrelated to any war contract, and even when the government declines to intervene. If affirmed, the brief described that the rulings would “invite private plaintiffs and the Government to pursue indefinitely and repeatedly any claim involving alleged fraud against the Government.”
The briefing parties argued that the Fourth Circuit’s interpretation of the WSLA expands the statute beyond its intended scope and would effectively apply the WSLA to all False Claims Act (FCA) claims, whether civil or criminal and whether or not related to any war activities. Additionally, the brief argued that because conflicts or “armed hostilities” abroad may never cease to the extent required by the WSLA, the Fourth Circuit’s interpretation provides potentially indefinite tolling. The AHA argued that this interpretation was unnecessary, as both private relators and the government have filed numerous healthcare-related FCA claims without application of the WSLA, and that the Fourth Circuit’s decision would lead to the filing of stale claims. The AHA argued that the stale claims would require healthcare providers to spend increased dollars on defense, which costs would “ultimately be borne by the consuming public.” The brief also countered the Fourth Circuit’s interpretation of the FCA’s “first-to-file” bar, which would effectively permit the filing of a duplicative suit with no new information as soon as the prior suit is no longer pending.