On May 26, 2015, the Supreme Court issued its decision in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. This case involves two questions. The first question is whether the statute of limitations for a claim of civil fraud against the federal government brought by a relator (private individual bringing suit on behalf of the government) can be indefinitely tolled by the Wartime Suspension of Limitations Act (WSLA). The second question asks whether the False Claims Act's "first-to-file" rule, which presents an incentive for relators to be the first to bring claims of fraud, simply requires that only one case can be pending at a time or requires that once a case has been filed, all cases based upon the same facts and alleging the same type of fraud are barred.
Justice Alito delivered the opinion of a unanimous Court, which held that 1) the WSLA applies only to criminal, not civil, claims and 2) that the FCA’s first to file bar only keeps claims out of court while related claims are still active, not in perpetuity, and that petitioner’s reading of the term “pending” as being synonymous with first filed would improperly bar suits having nothing to do with the merits of the case.
To discuss the case, we have Marcia G. Madsen, who is a Partner at Mayer Brown and Christopher A. Bowen, who is an Associate at Arent Fox LLP.