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Supreme Court Resolves False Claims Act Limitations Issues

In a unanimous decision issued in May, the Supreme Court decided a False Claims Act (FCA) case that cleared up issues concerning limitations provisions and how those provisions are applied. The decision in Kellogg Brown & Root Services, Inc. v. U.S. ex rel. Carter, No. 12-1497 (2015) (KBR) has important ramifications for government contractors and all who submit claims to the government.

Many FCA cases are brought by a relator (or whistleblower) in a qui tam action. In such cases, the FCA provides that “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). In KBR, the Supreme Court resolved a split among Circuit Courts over that “first to file” bar. The key to that part of the decision was the meaning of the word “pending.” Giving the term its ordinary meaning, the Court held that a FCA claim is not barred if a previous lawsuit has been dismissed. In reaching its conclusion, the Court rejected the argument that “pending” is “short-hand for the first-filed action” and held: “This interpretation does not comport with any known usage of the term ‘pending.’” Justice Alito pointed out that under that interpretation the trial of Socrates is still pending.

In its opinion, the Supreme Court also addressed an issue that has been applied by courts and litigants to extend the FCA’s limitations period. The Wartime Suspension of Limitations Act, 18 U.S.C. § 3287 (WSLA) suspends “the running of any statute of limitations applicable to any offense . . . involving fraud or attempted fraud against the United States or any agency thereof.” The Court’s ruling on this provision turned on the meaning of the term “offense.” Following a review of the language of the WSLA and its history, the Supreme Court held that the WSLA applies only to crimes and not to civil claims. Significantly, the term “offenses” in the earlier versions of the statute applied only to crimes. The Supreme Court also rejected the argument that Congress’ removal of the phrase, “now indictable under any statute” had the effect of “sweeping in civil claims.” Justice Alito noted: “Fundamental changes in the scope of a statute are not typically accomplished with so subtle a move.”

At the end of the day, government contractors can take solace in the fact that potential FCA claims are not always lurking beyond the horizon. Since 9/11, the country has essentially been on a continuous war footing and interpretations of the WSLA have left contractors fearing that old claims could rise from the dead any time, never mind that memories, details, documents and witnesses all fade. Of course, with them any ability reasonably to defend against old allegations fades as well. After KBR, the WSLA should no longer indefinitely extend the FCA’s six year limitations period.

Copyright Holland & Hart LLP 1995-2020.National Law Review, Volume V, Number 202


About this Author

todd miller, holland hart, commercial litigation, contracts lawyer, legal

For more than two decades, clients have turned to Todd Miller for counsel on complex commercial and government contracts litigation. Mr. Miller has litigated before judges and juries in federal and state courts throughout the country, and has prosecuted and defended bid protests and contract disputes before the U.S. Government Accountability Office, the U.S. Court of Federal Claims, and the Federal Boards of Contract Appeals.

A thought leader in the litigation arena, Mr. Miller has twice served on the Board of the ABA TechShow, and has been...

diego hunt, holland hart, litigation attorney, agency investigations, corporate
Of Counsel

Diego Hunt is an AV-rated attorney with over 15 years of litigation experience helping clients resolve complex domestic and international products liability and torts disputes. He has appeared before various federal and state courts, as well as before federal and state agencies, participating in all stages of proceedings, including agency investigations, motion hearings, and court and jury trials.

Mr. Hunt has successfully represented U.S. and foreign companies and individual parties in a wide range of matters. He has defended and prosecuted wrongful death, medical malpractice, personal injury, and products liability claims—including crop damage, electrical control systems, and negligent manufacturing claims. 

michael maloney, holland hart, bid protest lawyer, government contracts attorney
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Michael D. Maloney is Of Counsel in the Washington, D.C. office representing clients in all phases of government contracts and disputes in a wide array of industries. A seasoned litigator with over 25 years in private practice, Mr. Maloney strategically advises clients how and where to pursue complex bid protest matters before the Government Accountability Office, the Court of Federal Claims and other federal courts, or directly to the administering federal agency. He also counsels clients on federal, state, and local procurement compliance, guiding clients through the...