CIVIL FALSE CLAIMS ACT: U.S. Supreme Court Requests Solicitor General Input On Cases Involving The Wartime Suspension Of Limitations Act, The 'First-To-File Bar,' And Pleading The 'Presentment' Requirement

On the opening day of its new term, the Supreme Court invited the Solicitor General to weigh in on two cases involving three topics with enormous practical consequences for False Claims Act ("FCA") litigants. Acting on a pending petition for certiorari, the Supreme Court invited the Solicitor General to state his views on United States ex rel. Carter v. Kellogg Brown & Root, No. 12-1497, which involves: (1) whether the Wartime Suspension of Limitations Act ("WSLA"), 18 U.S.C. § 3287, suspends the statute of limitations for certain civil FCA claims, and (2) the operation of the FCA's "first-to-file" bar when the first-filed claim is dismissed during the pendency of a later-filed claim. In addition, the Court invited Solicitor General briefing on the petition for certiorari in United States ex rel. Nathan v. Takeda Pharm., N.A., Inc., No. 12-1349, which involves whether a § 3729(a)(1)(A) claim can be alleged "with particularity" absent pleading specific facts that a false claim was actually "presented" to the government.

The potential stakes are enormous, particularly with respect to the WSLA, the expansive reach of which has begun to take root in various jurisdictions to resurrect clearly stale claims. What effect the Solicitor General's opinions will have on the Supreme Court is subject to debate, however, since this Court has not been particularly receptive to government arguments that seek to unfairly expand the FCA's reach.

The WSLA Issue

The WSLA is a sixty-year old criminal code provision that purports to suspend the statute of limitations for "any offense" involving fraud against the government when the United States is "at war." As we have observed over the past year, the Justice Department and relators have dusted off this statute, advocating its application to civil FCA claims with increasing and alarming frequency. See FraudMail Alert No. 12-08-16; FraudMail Alert No. 13-03-21. Until the recent spate of cases, the WSLA was last applied to the civil FCA more than fifty years ago, with countless claims falling victim to the FCA's statutory limitations period in the interim without any mention of the WSLA as a time-bar panacea. The status quo has now changed dramatically, with the government and relators arguing—and convincing some courts—that the limitations periods in § 3731(b) of the FCA have been suspended and cannot bar their claims in all manner of FCA cases.

Earlier this year, in one of the cases that prompted the Supreme...