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The first-to-file bar provides that when a person brings a qui tam action on behalf of the Government no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. 31 U.S.C.S. § 3730(b)(5). The term “pending” means remaining undecided; awaiting decision. If the reference to a “pending” action in the False Claims Act is interpreted in this way, an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed.
In 2005, respondent worked for one of the petitioners, providing logistical services to the United States military in Iraq. He subsequently filed a qui tam complaint (Carter I), alleging that petitioners, who were defense contractors and related entities, had fraudulently billed the Government for water purification services that were not performed or not performed properly. In 2010, shortly before trial, the Government informed the parties that an earlier-filed qui tam suit (Thorpe) had similar claims, leading the District Court to dismiss Carter I without prejudice under the first-to-file bar. While respondent's appeal was pending, Thorpe was dismissed for failure to prosecute. Respondent quickly filed a new complaint (Carter II), but the court dismissed it under the first-to-file rule because Carter I's appeal was pending. Respondent then dismissed the Carter I appeal, and in June 2011, more than six years after the alleged fraud, filed the instant complaint (Carter III). The district court dismissed the complaint with prejudice under the first-to-file rule because of a pending Maryland suit. Further, because the Wartime Suspension of Limitations Act (WSLA) applied only to criminal charges, the court reasoned, all but one of respondent’s civil actions were untimely. Reversing, the Fourth Circuit concluded that the WSLA applied to civil claims and that the first-to-file bar ceased to apply once a related action was dismissed. Since any pending suits had by then been dismissed, the court held, respondent had the right to refile his case. It thus remanded Carter III with instructions to dismiss without prejudice.
The court held that the WSLA’s text, structure, and history showed that the Act applied only to criminal offenses, not to civil claims like those in this case. According to the court, Section 3287’s text supported limiting the WSLA to criminal charges. The term “offense” was most commonly used to refer to crimes, especially given the WSLA's location in Title 18, titled “Crimes and Criminal Procedure,” where no provision appeared to employ “offense” to denote a civil violation rather than a civil penalty attached to a criminal offense. The court also held that the FCA’s first-to-file bar kept new claims out of court only while related claims were still alive, not in perpetuity. Applying these principles in the instant case, the court held that the civil fraud claims of a former employee of defense contractors in a qui tam action on behalf of the government against the contractors were precluded. The court also concluded that the qui tam action was improperly dismissed based on a prior action alleging related claims since the prior action was dismissed and thus was no longer pending when the qui tam action was filed.