The Supreme Court granted certiorari in Kellogg Brown & Root Services, Inc., et al. v. United States ex. rel. Carter on July 1, 2014, as we noted in an earlier blog post. On August 29, the petitioners (defendants) filed their opening brief.
This decision is important because the Court will decide (1) whether the Wartime Suspension of Limitations Act (WSLA) applies to toll the statute of limitations in civil FCA cases, and (2) whether the first-to-file bar “functions as a ‘one case-at-at-time’ rule.” There is a significant circuit split on the latter question.
Petitioners’ opening brief raises several arguments. First, petitioners maintain that the Fourth Circuit’s ruling which interprets the first-to-file bar as one that creates a “one case-at-a-time” rule is incorrect. Petitioners argue that the Fourth Circuit’s interpretation fails to promote the bar’s “twin goals” of encouraging the disclosure of fraud, but discouraging opportunistic private litigants plaintiffs as it allows subsequent relators to file similar claims once a first-filed case has been dismissed. With respect to the statute of limitations issue, petitioners dispute that the WSLA is applicable to civil qui tam actions and instead, argue that it should only apply to criminal cases. In support of this position, petitioners point to the FCA’s inherent “detailed limitations scheme that includes an absolute 10-year statute of repose” and as such, the WSLA’s application here would be “particularly inappropriate.”
The case will likely be argued in December 2014 or January 2015.