The Supreme Court issued three opinions this morning. I’m writing about one of them today because I’m suffering from the dreaded “first day back at work after a three day holiday blues;” that and an unexpected dental appointment this morning to fix a broken tooth. The cases cover bankruptcy (Wellness Int’l Network, Ltd. v. Sharif (13-935)), patents (Commil USA, LLC v. Cisco Systems, Inc. (13-896)), and when qui tam suits under the Federal Claims Act (FCA) may or may not be barred by a limitations provision (Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter (12-1497)).
Carter was an employee of a government contractor who provided water purification services to the government in Iraq. The contractor, Carter claims, billed the government for services that were either performed improperly or not performed at all. The FCA has two provisions at issue here. One is a “first-to-file” provision that bars subsequent suits that involve the same facts or incidents. The other is the FCA’s statute of limitations provision requiring a qui tam action must be brought within six years of a violation or within three years of the date by which the United States should have known about a violation. There is a 10 year limitation against suits in any event.
Carter brought suit within the time allowed but was dismissed in 2010 because there was a pending suit (Thorpe) in another court on the same issue. The court dismissed Carter’s suit without prejudice. Carter filed a second suit when Thorpe was dismissed for failure to prosecute. That suit was also dismissed because Carter’s appeal of the first dismissal was pending. Carter dismissed the appeal and filed a third suit. The district court dismissed that third suit, this time with prejudice, on the grounds that two other cases, one in Texas and one in Maryland, had already been initiated on the same facts. The district court also ruled that the Wartime Suspension of Limitations Act (WSLA), which suspends the Statute of Limitations for “any offense” involving fraud against the federal government, only applies to criminal cases and not Carter’s civil case. Only one of Carter’s claims would survive the limitations clause
Carter appealed the dismissal and the Fourth Circuit held that the dismissal of the pending cases from Texas and Maryland removed the first-to-file impediment. It also ruled that the WSLA applied to civil as well as criminal cases. The contractors appealed to the U.S. Supreme Court.
The Court spent the bulk of the opinion on the applicability of the WSLA to Carter’s case and concluded that the language, structure, and history of the statute limited it to criminal cases. The Court then resolved the question of whether Carter’s third complaint should be dismissed with prejudice given that at least one claim would survive. The Court agreed with the Fourth Circuit that when previous cases are dismissed without resolution that the first-to-file bar ceases.