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 Services, Inc., 710 F.3d 171, 181, 183 (4th Cir. 2013), certiorari granted sub nom., 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” 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 Partnership, 748 F.3d 338, 343-44 (D.C. Cir. 2014), rehearing en banc denied (Jul. 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,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 “[p]laintiff cannot join defendants who simply engaged in similar types of behavior, but who are otherwise unrelated; some allegation of concerted action between defendants is required.” Id. at *1. After the Grynbergrelator refiled in eight different district courts, the cases were transferred as multidistrict litigation to the District of Wyoming and ultimately dismissed based on the public disclosure bar, given the relator’s inability to qualify as an “original source” under 31 U.S.C. § 3729(e)(4). See In re Natural Gas Royalties Qui Tam Litigation, 562 F.3d 1032 (10th Cir. 2009). As another example, the relator could file a new action against the same defendant after the first action settles. This happened inShea, supra. The Government intervened in the first action, the first action settled, with relator receiving nearly $20 million, and the relator then filed a second action against the same defendant that expanded the allegations to “more contracts, more charges, and more governmental agencies.” 748 F.3d at 340.
As opposed to the meaning of “pending action,” the arguably more obscure question of whether the first-to-file bar applies to the same relator has received relatively minimal attention. To date there is only one reported appellate decision squarely addressing that issue, coincidentally, it is the D.C. Circuit in Shea.
The D.C. Circuit’s Holding That the First-To-File Bar Applies Where the Same Relator Files Both Actions
The relator in Shea sought to avoid the first-to-file bar on three grounds: (1) the cases were not related because they involved different contracts and agencies; (2) the first-to-file bar does not apply where the relator is the same in both actions; and (3) the first action was no longer pending. 748 F.3d at 341. Although the D.C. Circuit rejected all three arguments, it is the second argument that is of interest here. The relator relied on the statutory language to argue that since the statute prohibits both “intervening” in and “bringing” a related action, “it would be nonsense for a relator to intervene in his own suit,” and thus the term “no person” “cannot logically refer to the same relator – in fact, it must be understood to mean ‘no person other than the original relator.’” 748 F.3d at 342. The D.C. Circuit rejected the relator’s argument based on both the text of the statute and policy reasons – no case on point was cited.
Regarding the text, the D.C. Circuit stated:
The text of the statute clearly directs that “no person” is allowed to bring a related suit. “[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. And it is not nonsense to disallow all persons – the original relator included – from bringing a related action. The statute is written in the disjunctive. A second relator need not be capable of both forms of prohibited behavior to be eligible for the prohibition. On Shea’s reasoning, a statute that provided that “no vehicles may fly over or drive through a field” could only apply to vehicles that could both fly and drive. No rule of grammar, logic, or the law compels such a reading.
748 F.3d at 342-43 [citation omitted]. Regarding policy, the D.C. Circuit stated:
Nor are Shea’s policy arguments persuasive. Shea rightly points out that one purpose of the first-to-file bar is to encourage “whistleblowers to approach the government and file suit as early as possible.” As he notes, a litigant cannot race himself to the courthouse or divide a bounty with himself. But Shea again ignores the other purpose: “rejecting suits which the government is capable of pursuing itself.” The plain-text reading of the statute advances both goals. We therefore reject Shea’s argument that the first-to-file bar does not apply to an original relator.
748 F.3d at 343 [citations omitted].
Defendants should be aware that procedural missteps by a relator that result in dismissal or partial dismissal of an action, or even the dropping of one or more parties, can set up a first-to-file dismissal of a subsequent action. Although the Shea decision did not involve a procedural mistake by the relator, the decision’s reasoning applies equally to such mistakes. It may seem harsh for a relator to lose his day in court based on misjoinder or even improper venue, but the potential for this to happen is real – in at least the D.C. Circuit – regardless of whether the first action is still “pending.” Government contracts attorneys and defendants should take this into consideration in deciding whether or not to raise procedural defenses that, in non-FCA cases, typically do not have such significant consequences. At the same time, defendants must not forget that although securing a procedural dismissal may disadvantage the relator who brings a subsequent action, the Government will likely have another opportunity to intervene as of right.
 The first-to-file bar is not limited to actions against the same corporate defendant, but extends to affiliates. See In re Natural Gas Royalties Qui Tam Litigation, 566 F.3d 956, 962 (10th Cir. 2009).
 Misjoinder typically does not result in dismissal of an entire action, but instead results in one or more parties being dropped. See Fed. R. Civ. P. 21.