You Again?: Application Of The First-To-File Bar Where Subsequent Actions Are Brought By The Same Relator

The Federal False Claims Act ("FCA"), 31 U.S.C. § 3729, et seq., has unique procedural aspects that come into play when a private whistleblower (the "relator") seeks to sue on behalf of the Government. One of these, the so-called "first-to-file" bar, applies when two "related" whistleblower actions are filed: "When a person brings an [FCA action], 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. § 3730(b)(5). The circuits are split as to whether the bar applies only while the first-filed action is "pending," or applies even if the first-filed action has been dismissed. For example, the Fourth Circuit held "that once a case is no longer pending the first-to-file bar does not stop a relator from filing a related case." U.S. ex rel. Carter v. Kellogg Brown & Root Servs., Inc., 710 F.3d 171, 181, 183 (4th Cir. 2013), cert. granted, 134 S. Ct. 2899, 189 L. Ed. 2d 853 (2014). On the other hand, the D.C. Circuit expressly disagreed with Carter, rejecting the concept that the first-to-file bar is a "temporal limit" to related suits, and concluding that related actions are barred "regardless of the posture of the first-filed action." U.S. ex rel. Shea v. Cellco P'ship, 748 F.3d 338, 343-44 (D.C. Cir. 2014), reh'g denied en banc (July 16, 2014). In finding that the statutory reference to "pending action" means the first-filed action, the D.C. Circuit noted that its interpretation "better suits" the policy of the bar—to prohibit subsequent private actions once the Government is on notice of the fraud. The Supreme Court's July 1, 2014 grant of certiorari to review the Fourth Circuit's decision in Carter should resolve the circuit split.

But what about the same relator bringing a second suit against the same or affiliated defendants,1 regardless of whether the first suit is pending? Does the first-to-file bar even apply? It is not speculation to posit that the same relator could bring subsequent related actions – this could happen under a variety of circumstances. For example, the first suit could be dismissed on procedural grounds, such as misjoinder, causing the relator to refile in other districts. That is exactly what happened in U.S. ex rel. Grynberg v. Alaska Pipeline Co., No. Civ. 95-725(TFH), 1997 WL 33763820 (D.D.C. Mar. 27, 1997). The district court found that sixty defendants were "improperly joined and must be dismissed" based on the rationale that a...