A key provision of the False Claims Act is the so-called “first-to-file” bar which prevents a case from proceeding if there is a “related” action “pending” at the time the case is filed. After the United States Court of Appeals allowed a whistleblower’s case to proceed despite the fact that another related case had at one time been filed, the Supreme Court has been asked to grant a petition for a writ of certiorari to review this question.
Recently, DOJ filed an amicus brief expressing its view that the Fourth Circuit correctly interpreted and applied the FCA’s first-to-file provision and the issue does not merit review by the Supreme Court. The Fourth Circuit held that once a case is no longer “pending” (e.g., has been dismissed and there is no pending appeal), the first-to-file provision does not bar a relator from filing a related case.
While this outcome would seem obvious given the plain language of the FCA provision and the meaning of the word “pending,” the defendant in the Fourth Circuit case is arguing that the recent contrary decision by a panel of the United States Court of Appeals for the D.C. Circuit creates a split in the circuit courts that merits Supreme Court review and resolution.
In response, the Solicitor General and DOJ argue that the Fourth and Seventh Circuits are in agreement with DOJ’s view, that the Tenth Circuit has agreed (albeit in dicta), and that the D.C. Circuit decision was a panel decision only with a vigorous dissent with a petition for rehearing en banc now pending.
As such, DOJ views the split as the a narrow one that may well be resolved by the D.C. Circuit itself, and thus Supreme Court review is not merited. Brief at 25-29 (pdf pages, not brief pages).
We expect the D.C. Circuit will hear the case en banc and will ultimately agree with the other Circuits, rather than give the FCA a tortured reading. We also expect the Supreme Court will not grant certiorari to hear the Fourth Circuit case.
Nevertheless, the case is a good reminder of the many potential pitfalls or land mines a relator and his or her counsel may encounter as well-funded defendants lob myriad arguments and defenses into the courts. Both the whistleblower and their counsel should expect significant (and often unforeseen or unknown) risks anytime a qui tam case is filed.