Opposition Brief — United States, ex rel. Benjamin Carter, Petitioner v. Halliburton Co., et al.

No. 17-1060

In the Supreme Court of the United States

UNITED STATES OF AMERICA EX REL.

BENJAMIN CARTER, PETITIONER

v.

HALLIBURTON COMPANY; KELLOGG BROWN & ROOT

SERVICES, INC.; SERVICE EMPLOYEES INTERNATIONAL

INC.; KBR, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

JOHN P. ELWOOD

Counsel of Record

CRAIG D. MARGOLIS

TIRZAH S. LOLLAR

RALPH C. MAYRELL

VINSON & ELKINS LLP

2200 Pennsylvania Ave. NW,

Suite 500 West

Washington, D.C. 20037

(202) 639-6500

jelwood@velaw.com

QUESTIONS PRESENTED

The False Claims Act (“FCA”) provides that

“[w]hen a person brings an action under th[e FCA],

no person other than the Government may * * * bring

a related action based on the facts underlying the

pending action.” 31 U.S.C. § 3730(b)(5). That provision is known as the “first-to-file” bar.

The questions presented are:

1. Whether the Fourth Circuit erred in concluding

that an action barred because it was “br[ought]” when

two earlier-filed related actions were pending is not

automatically revived by the dismissal of the earlierfiled actions.

2. Whether the Fourth Circuit erred in holding

that the district court did not abuse its discretion in

denying petitioner leave to amend his complaint to

include additional allegations of allegedly fraudulent

conduct.

3. Whether the Fourth Circuit erred in “not attempt[ing] to revisit” circuit precedent describing the

first-to-file bar as “jurisdictional,” Pet. App. 5 n.2,

based on an argument petitioner raised in a footnote.

(I)

II

PARTIES TO THE PROCEEDING

Petitioner was the plaintiff-appellant below.

Respondents were defendants-appellees below.

RULE 29.6 STATEMENT

Respondent KBR, Inc. is a publicly held corporation that has no parent company, and is the ultimate

parent of petitioner Kellogg Brown & Root Services,

Inc. (KBR Holdings, LLC is an intermediate parent).

KBR, Inc. is also the ultimate parent of respondent

Service Employees International, Inc. (KBR Group

Holdings, Inc. and KBR Holdings LLC are intermediate parents). Respondent Halliburton Company is a

publicly held company that has no parent company.

Other than as discussed above, no publicly held company owns 10% or more of the stock of any respondent.

III

TABLE OF CONTENTS

Page

Questions Presented ..................................................... I

Parties To The Proceeding ......................................... II

Rule 29.6 Statement ................................................... II

Table Of Authorities .................................................. IV

Opinions Below ............................................................ 1

Jurisdiction .................................................................. 1

Statement ..................................................................... 2

A. Statutory Background ........................................ 2

B. Factual Background ........................................... 4

C. Procedural History.............................................. 6

Reasons For Denying The Petition ........................... 15

A. Petitioner’s Issues Are Not Properly Before

This Court ......................................................... 15

B. The Decision Below Implicates No Conflict

Of Authority ...................................................... 21

C. The Fourth Circuit’s Decision Is Correct ......... 26

Conclusion .................................................................. 31

IV

TABLE OF AUTHORITIES

Cases:

Page(s)

Adarand Constructors, Inc. v. Mineta,

534 U.S. 103 (2001) ........................................... 20

Bennally v. United States,

No. 13-cv-604, 2015 WL 10987109

(D.N.M. Oct. 22, 2015). ...................................... 31

City of Springfield v. Kibbe,

480 U.S. 257 (1987) ........................................... 17

Gabelli v. SEC,

568 U.S. 442 (2013) ............................................. 4

Graham Cty. Soil & Water Conserv. Dist. v.

U.S. ex rel. Wilson,

559 U.S. 280 (2010) ............................................. 3

Hallstrom v. Tallmook Cty.,

493 U.S. 20 (1989) ............................................. 28

Harris v. Garner,

216 F.3d 970 (11th Cir. 2000) ........................... 27

Johnson v. DeGrandy,

512 U.S. 997 (1994) ........................................... 26

Kellogg Brown & Root Servs., Inc. v.

U.S. ex rel. Carter,

135 S. Ct. 1970 (2015) ............................... passim

Mem. Op., U.S. ex. rel. Carter v.

Halliburton Co. (E.D. Va. May 10, 2010)

(No. 08-cv-1162) [Dkt. 306] ................................. 5

V

Cases—Continued:

Page(s)

Morongo Band of Mission Indians v.

California State Bd. of Equalization,

858 F.2d 1376 (9th Cir. 1988) ........................... 13

Republic of Argentina v. NML Capital, Ltd.,

134 S. Ct. 2250 (2014) ....................................... 18

State Farm Fire & Cas. Co. v.

U.S. ex rel. Rigsby,

137 S. Ct. 436 (2016) ............................... 2, 14, 28

TFWS, Inc. v. Franchot,

572 F.3d 186 (4th Cir. 2009) ............................. 18

U.S. ex rel. Batiste v. SLM Corp.,

659 F.3d 1204 (D.C. Cir. 2011) ........................... 3

U.S. ex rel. Boise v. Cephalon, Inc.,

159 F. Supp. 3d 550 (E.D. Pa. 2016) ................. 22

U.S. ex rel. Brown v. Pfizer, Inc.,

No. 05-cv-6795, 2017 WL 1344365

(E.D. Pa. Apr. 12, 2017) .................................... 22

U.S. ex rel. Carter v. Halliburton Co.,

144 F. Supp. 3d 869 (E.D. Va. 2015)......... passim

U.S. ex rel. Carter v. Halliburton Co.,

19 F. Supp. 3d 655

(E.D. Va. May 2, 2014) ...................................... 10

U.S. ex rel. Carter v. Halliburton Co.,

315 F.R.D. 56 (E.D. Va. 2016) ............................. 1

U.S. ex rel. Carter v. Halliburton Co.,

612 Fed. Appx. 180 (4th Cir. 2015) ............... 1, 11

VI

Cases—Continued:

Page(s)

U.S. ex rel. Carter v. Halliburton Co.,

710 F.3d 171 (4th Cir. 2013) ..................... passim

U.S. ex rel. Carter v. Halliburton Co.,

866 F.3d 199 (4th Cir. 2017) ............................... 1

U.S. ex rel. Carter v. Halliburton Co.,

973 F. Supp. 2d 615 (E.D. Va. 2013)................... 8

U.S. ex rel. Carter v. Halliburton Co.,

No. 11-cv-602, 2011 WL 6178878

(E.D. Va. Nov. 29, 2011) ............................ passim

U.S. ex rel. Chovanec v.

Apria Healthcare Grp., Inc.,

606 F.3d 361 (7th Cir. 2010) ..................... passim

U.S. ex rel. Gadbois v. PharMerica Corp.,

809 F.3d 1 (2015) ....................................... passim

U.S. ex rel. Grupp v.

DHL Express (USA), Inc.,

742 F.3d 51 (2d Cir. 2014) ................................. 29

U.S. ex rel. McBride v. Halliburton Co.,

848 F.3d 1027 (D.C. Cir. 2017) ......................... 29

U.S. ex rel. Shea v. Cellco P’ship,

863 F.3d 923 (D.C. Cir. 2017) ................... passim

U.S. ex rel. Wood v. Allergan, Inc.,

246 F. Supp. 3d 772 (S.D.N.Y. 2017) ................ 22

United States v. Coppedge,

490 Fed. Appx. 525 (4th Cir. 2012) ................... 17

United States v. Dairy Farmers of Am., Inc.,

426 F.3d 850 (6th Cir. 2005) ............................. 21

VII

Cases—Continued:

Page(s)

United States v. Olano,

507 U.S. 725 (1993) ........................................... 15

United States v. Wells,

519 U.S. 482 (1997) ........................................... 17

United States v. Wong,

135 S. Ct. 1625 (2015) ....................................... 31

Universal Health Servs., Inc. v.

U.S. ex rel. Escobar,

136 S. Ct. 1989 (2016) ....................................... 29

Vermont Agency of Nat. Res. v.

U.S. ex rel. Stevens,

529 U.S. 765 (2000) ............................................. 2

Statutes:

28 U.S.C. § 1254(1).................................................... 1

31 U.S.C. § 3729(a).................................................... 2

31 U.S.C. § 3729(a)(1) ............................................... 2

31 U.S.C. § 3730(b)(1) ............................................... 3

31 U.S.C. § 3730(b)(5) ..................................... passim

31 U.S.C. § 3730(d)(2) ............................................... 3

31 U.S.C. § 3730(e)(4)(A) (2006) ............................. 31

31 U.S.C. § 3730(e)(4)(A) (2012) ............................. 31

31 U.S.C. § 3731(b)(1) ............................................... 4

31 U.S.C. § 3731(b)(2) ............................................... 4

VIII

Rules:

Page(s)

Fed. R. Civ. P. 1 ...................................................... 19

Fed. R. Civ. P. 15(a)(2)............................................ 12

Fed. R. Civ. P. 15(d) .................................... 12, 22, 23

Fed. R. Civ. P. 59(e) ................................................ 13

S. Ct. Rule 10(a) ...................................................... 25

Regulations:

28 C.F.R. 85.5 (as amended by

83 Fed. Reg. 3,944 (Jan. 29, 2018)). .................... 2

Other Authorities:

Black’s Law Dictionary (10th ed. 2014) ................. 27

Fourth Am. Compl., U.S. ex rel. Denis v.

Medco Health Sols., Inc.,

(D. Del.) (No. 11-cv-684) [Dkt. 111] .................. 20

Gov’t Br. Amicus Curiae, U.S. ex rel.

Chovanec v. Apria Healthcare Grp., Inc.,

606 F.3d 361 (7th Cir. 2010),

http://goo.gl/uscYwn .......................................... 29

Gov’t Br. Amicus Curiae, U.S. ex rel. Wood v.

Allergan, Inc. (2d Cir.)

(No. 17-2191) [Dkt. 57] ................................ 26, 29

Order, U.S. ex rel. Wood v.

Allergan, Inc. (2d Cir. July 17, 2017)

(No. 17-1583) [Dkt. 60] ...................................... 25

IX

Other Authorities—Continued:

Page(s)

Wil Granger, Report of Findings & Root

Cause Water Mission B4 Ar Ramadi

(May 13, 2005), http://goo.gl/BLDE8b ................ 4

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-26)

is reported at 866 F.3d 199. The opinion of the

district court is reported at 144 F. Supp. 3d 869. The

opinion of the district court denying petitioner’s

motion for reconsideration (Pet. App. 27-46) is

reported at 315 F.R.D. 56.

An earlier opinion of the district court granting

respondents’ previous motion to dismiss with

prejudice (C.A. App. JA230) is under seal and

unreported; a redacted version of that opinion, is

unreported, but available at 2011 WL 6178878. The

court of appeals’ previous opinion affirming dismissal

without prejudice on first-to-file grounds, but

reversing dismissal with prejudice, is reported at 710

F.3d 171. This Court’s opinion affirming the court of

appeals’ dismissal without prejudice but reversing on

other grounds is reported at 135 S. Ct. 1970. The

opinion of the court of appeals on remand from this

Court summarily affirming the district court’s

dismissal with prejudice except as to one claim,

affirming dismissal without prejudice of that claim,

and remanding to the district court, is unpublished,

but is reprinted in 612 Fed. Appx. 180.

JURISDICTION

The judgment of the court of appeals was entered

on July 31, 2017. A petition for rehearing was denied

on August 28, 2017 (Pet. App. 47-48). On November

21, 2017, Chief Justice Roberts extended the time

within which to file a petition for a writ of certiorari

to and including January 25, 2018, and the petition

was filed on that date. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

(1)

2

STATEMENT

In a case that has already dragged on for well over

a decade, petitioner Benjamin Carter seeks to resuscitate claims that he has acknowledged violated the

first-to-file bar, which “require[s], in express terms,

the dismissal of a relator’s action.” State Farm Fire

& Cas. Co. v. U.S. ex rel. Rigsby, 137 S. Ct. 436

(2016). But petitioner’s current position that his

later-filed claims are automatically revived upon the

dismissal of earlier-filed actions (or can be revived by

filing an amended complaint) is directly contrary to

positions he has affirmatively embraced during most

of this case’s long history. His position is also impossible to square with the plain language of the FCA.

And for all petitioner’s talk of a “circuit split,” a unanimous Fourth Circuit correctly concluded that petitioner would not be entitled to relief even under the

decision that is most favorable to his position. See

Pet. App. 23 (citing U.S. ex rel. Gadbois v.

PharMerica Corp., 809 F.3d 1 (2015)). That factbound conclusion warrants no further review. Petitioner’s ever-changing positions provide no basis for

reviving his stale and meritless claims.

A.

Statutory Background

The FCA imposes liability for knowingly presenting false or fraudulent claims to the United States for

payment or approval. 31 U.S.C. § 3729(a)(1). The

Act’s “essentially punitive” liability scheme imposes

treble damages plus civil penalties of up to $22,363

per false claim. See Vermont Agency of Nat. Res. v.

U.S. ex rel. Stevens, 529 U.S. 765, 784-785 (2000); 31

U.S.C. § 3729(a); 28 C.F.R. 85.5 (as amended by 83

Fed. Reg. 3,944 (Jan. 29, 2018)). The Act’s qui tam

3

provisions authorize private “relators” to bring FCA

actions “in the name of the Government.” 31 U.S.C.

§ 3730(b)(1). By granting relators a significant share

of recoveries, see id. § 3730(d)(2), the FCA creates

strong incentives for private suits.

Congress sought in the FCA to strike the “golden

mean between adequate incentives for whistleblowing insiders with genuinely valuable information

and discouragement of opportunistic plaintiffs who

have no significant information.” Graham Cty. Soil

& Water Conserv. Dist. v. U.S. ex rel. Wilson, 559 U.S.

280, 294 (2010). “While encouraging citizens to act as

whistleblowers, the [FCA] also seeks to prevent parasitic lawsuits based on previously disclosed fraud.”

U.S. ex rel. Carter v. Halliburton Co., 710 F.3d 171,

181 (4th Cir. 2013). To that end, Congress enacted

strict “limits on [the FCA’s] qui tam provisions,

including * * * [the] first-to-file bar.” Ibid. Under

that bar, “[w]hen a person brings an action under

th[e FCA], 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 first-to-file bar serves Congress’s

“twin goals of rejecting suits which the government is

capable of pursuing itself” because it is already on

notice of the alleged fraud, “while promoting those

which the government is not equipped to bring.” U.S.

ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1208

(D.C. Cir. 2011).

The FCA also imposes statutes of limitations and

repose. A relator “may not * * * br[ing]” a qui tam

action “more than 6 years after the date on which the

[FCA] violation * * * [was] committed.” 31 U.S.C.

4

§ 3731(b)(1). The FCA also contains an “absolute

provision for repose,” see Gabelli v. SEC, 568 U.S.

442, 453 (2013), which directs that “in no event [may

an action be brought] more than 10 years after the

date on which the violation [was] committed,” 31

U.S.C. § 3731(b)(2); accord Kellogg Brown & Root

Servs., Inc. v. U.S. ex rel. Carter, 135 S. Ct. 1970,

1974 (2015).

B.

Factual Background

Kellogg Brown & Root Services, Inc. and related

entities (collectively, “KBR”) provided logistical services to the U.S. military in Iraq. Between midJanuary and April 2005, petitioner Benjamin Carter

briefly worked for KBR in Iraq as a water purification

operator. Pet. App. 5. On February 1, 2006, petitioner filed a qui tam complaint, which he subsequently

amended, alleging FCA violations involving contaminated water. U.S. ex rel. Carter v. Halliburton Co.,

No. 1:11-cv-602, 2011 WL 6178878, at *2 (E.D. Va.

Dec. 12, 2011); U.S. ex rel. Carter v. Halliburton Co.,

144 F. Supp. 3d 869, 871-872 (E.D. Va. 2015). The

government investigated and declined to intervene.1

1 Petitioner dramatically block quotes from a report written at

the time to suggest that KBR was responsible for water

purification issues. Petitioner fails to note, however, that

elsewhere the report states that the “[w]ater supplied * * * came

from [the] Army [water purification system].” Wil Granger 3, 5,

18, Report of Findings & Root Cause Water Mission B4 Ar

Ramadi (May 13, 2005), http://goo.gl/BLDE8b; accord Carter

First Am. Compl. ¶ 10 (E.D. Va.) (No. 08-cv-1162) [Dkt. 5] (“At

Camp Ramadi, the [water purification] unit was operated by

Army military personnel.”).

5

The district court dismissed that complaint for

failure to plead fraud with particularity. Petitioner

amended again in January 2009 (“Carter I”), this

time alleging not a failure to purify water, but false

billing for labor costs between January and June

2005. Carter, 710 F.3d at 175. Shortly before trial

(but before KBR had filed its summary judgment

motion), Pet. 5-6, the government notified the parties

about an earlier-filed qui tam action in California, in

which the relator was represented by the same lawyer who filed Carter I, Mem. Op. 6 n.2 (E.D. Va. May

10, 2010) (No. 08-cv-1162) [Dkt. 306]), alleging similar timekeeping fraud. Concluding that the claims in

the earlier-filed suit were “related” to petitioner’s

suit, the district court granted KBR’s motion to dismiss under the first-to-file bar, analyzing “the facts

as they existed at the time th[e] action was brought.”

Id. at 11, 15. Petitioner noticed an appeal; two weeks

later, the California case was dismissed. Carter, 2011

WL 6178878, at *2.

In August 2010, petitioner refiled in a new docket

what he concedes was “an identical copy” of his earlier complaint (“Carter II”)—while also maintaining his

Carter I appeal. See Tr. Mot. Hr’g at 22 (E.D. Va.)

(No. 10-cv-864) [Dkt. 49]. Petitioner voluntarily dismissed the Carter I appeal in February 2011, 710

F.3d at 176, to clear the way for Carter II, without

suggesting that Carter I might be revived automatically (or saved through amendment) when the California case was dismissed.

The district court dismissed Carter II without

prejudice on the ground that petitioner’s own Carter I

appeal was pending when Carter II was filed, trigger-

6

ing the first-to-file bar. Carter, 710 F.3d at 176.

Petitioner did not suggest that Carter II was automatically revived when his earlier appeal was dismissed, and did not seek leave to amend his complaint, nor did he appeal.

C.

Procedural History

1. 2011 District Court Decision. On June 2,

2011, petitioner brought the current action, filing a

third copy of his complaint (“Carter III”), the allegations of which were “identical to the complaint[s] filed

in [Carter II] and * * * [Carter I].” Carter, 2011 WL

6178878, at *3. The government again declined to

intervene. Ibid. On the day Carter III was filed, two

“related cases were pending: United States ex rel.

Duprey [filed in the District of Maryland in 2007]

* * * and another action that is under seal filed in

Texas in [2004].”2 Carter, 710 F.3d at 176. Duprey

was dismissed in October 2011, before petitioner filed

his opposition to KBR’s motion to dismiss; the Texas

case was dismissed in 2012, before the Fourth

Circuit’s 2013 decision. Pet. App. 6.

In November 2011, the district court dismissed

Carter III, holding that it was “related” to Duprey,

and thus barred by first-to-file. Carter, 2011 WL

2 The Fourth Circuit stated that the Texas action was filed in

2007. Carter, 710 F.3d at 176; Pet. App. 5-6. While the docket

for the Texas action is sealed, the case number, C.A. App.

JA236, as well as the clerk’s stamp and a fax header on the

complaint, Ex. 3, KBR Mot. to Dismiss (E.D. Va.) (No. 11-cv-602)

[Dkt. 11], all show the matter was actually filed in 2004, well

before petitioner brought his first action in 2006, Carter, 710

F.3d at 175, and before the California action that barred

Carter I.

7

6178878, at *6-8. The court “concluded that it need

not decide [whether the Texas action was pending at

the time of filing] because at least one case—

Duprey—was pending.” Carter, 710 F.3d at 176. In

resisting dismissal, petitioner did not argue that the

October 2011 dismissal of Duprey allowed his suit to

move forward without refiling, nor did he seek leave

to amend. Nor did petitioner suggest that his lawsuit

had precedence over Duprey or the Texas action.

The district court found (and all parties agreed)

that with the exception of two labor charges totaling

$673.56 that KBR submitted for payment on June 15,

2005, all of the claims included in petitioner’s Carter

III action were untimely under the FCA’s six-year

statute of limitations, absent tolling. Carter, 2011

WL 6178878, at *8-12 & n.11; Carter, 710 F.3d at 188

n.1 (Agee, J., concurring in part and dissenting in

part). After concluding that neither the Wartime

Suspension of Limitations Act (“WSLA”) nor equitable tolling extended the six-year limitations period,

the district court held that “Carter’s claims are timebarred except for the [June 15, 2005] voucher for

$673.56.” Carter, 2011 WL 6178878, at *12. But the

district court also concluded that because “Carter’s

complaint as a whole [is] independently barred by operation of the first-to-file bar,” and because every

claim in his complaint (including the one for $673.56)

“would be untimely were Carter to again file a new

action,” “dismissal is with prejudice.” Ibid.; Carter,

710 F.3d at 176.

2. 2013 Court of Appeals Decision. The Fourth

Circuit unanimously held that Carter III must be

dismissed under the first-to-file bar, because both

8

Duprey and the Texas action had been pending when

it was brought. Carter, 710 F.3d at 181-183. The

court held that “the plain language of the first-to-file

bar” “look[s] at the facts as they existed when the

claim was brought to determine whether an action is

barred by the first-to-file bar.” Id. at 183. The court

concluded that dismissal should be without prejudice,

because “once a case is no longer pending,” “the firstto-file bar allows a plaintiff to bring a claim later.”

Ibid. But the Fourth Circuit emphasized that dismissal was mandatory: “[I]f a case is brought while

the original case is pending it must be dismissed

‘rather than left on ice.’ ” Ibid. (quoting U.S. ex rel.

Chovanec v. Apria Healthcare Grp., Inc., 606 F.3d

361, 365 (7th Cir. 2010)). Petitioner did not suggest

that dismissal of the earlier-filed cases might revive

Carter III automatically or through amendment, although both prior cases had been dismissed. Nor did

petitioner argue against dismissal without prejudice.

See Carter C.A. Br. 33-46, 48-49, 54 (4th Cir.) (No.

12-1011) [Dkt. 29].

The court of appeals agreed that all of petitioners

claims (save the $673.56 claim) were outside the sixyear statute of limitations and thus untimely absent

tolling. See Carter, 710 F.3d at 177, 181; id. at 188 &

n.1 (Agee, J., concurring in part and dissenting in

part). The majority held, however, that WSLA tolling

was available. Id. at 710 F.3d at 178-181. The court

of appeals “remanded with instructions to * * * dismiss[] without prejudice.” Pet. App. 14; C.A. App.

JA142; U.S. ex rel. Carter v. Halliburton Co., 973 F.

Supp. 2d 615, 630 (E.D. Va. 2013). At petitioner’s

urging, the district court dismissed without prejudice.

9

3. 2015 Decision by this Court. KBR petitioned

for certiorari, seeking review of the Fourth Circuit’s

WSLA holding and without-prejudice first-to-file

dismissal, but “never question[ing] th[e] [court of appeals’ 2013] holding that the first-to-file analysis depends on the set of facts in existence at the time an

FCA action is filed.” Pet. App. 8. Indeed, KBR’s firstto-file question was predicated on the understanding

that the first-to-file analysis occurs “at the time of filing.”3

Petitioner filed no cross-petition and “did not

question [the Fourth Circuit’s] decision to conduct its

first-to-file analysis based on the facts in existence at

the time that the Carter Action was brought.” Pet.

App. 8. Indeed, petitioner argued that “[t]he panel

correctly decided that the district court’s jurisdictional dismissal of the case should have been without

prejudice.” See Br. in Opp. 17 (U.S.) (No. 12-1497)

(emphasis added); accord id. at 25 (“The panel’s decision was correct * * * . ”). After this Court granted review, petitioner’s merits brief assured this Court that

his (incorrect) argument that the WSLA tolls civil

FCA actions would not “open the door to an endless

stream of parasitic lawsuits,” because “[a] related action based on the facts underlying the pending action

must be dismissed.” Carter Resp’t Br. 59-60 (U.S.)

(No. 12-1497) (emphasis added) (quoting Chovanec,

606 F.3d at 362).

See KBR Pet. I (U.S.) (No. 12-1497) (presenting question

whether first-to-file bar “allow[s] an infinite series of duplicative

claims so long as no prior claim is pending at the time of filing”).

3

10

This Court affirmed the Fourth Circuit’s dismissal

without prejudice on first-to-file grounds, holding

that “the [FCA’s] first-to-file bar keeps new claims

out of court only while related claims are still alive,”

135 S. Ct. at 1973 (emphasis added), and thus “ceases

to bar * * * suits” that are filed after the earlier filed

case “is dismissed.” Id. at 1978. As a result, this

Court concluded that “dismissal with prejudice was

not called for” “under the first-to-file rule” for any of

petitioner’s timely claims, which he “had the right to

refile.” Id. at 1975, 1978 (emphasis added). This

Court “did not reject, or even comment on, [the court

of appeals’] holding that a court must ‘look at the

facts as they existed when the claim was brought to

determine whether an action is barred by the first-tofile bar.’ ” Pet. App. 15; contra Pet. 2-3, 13-14, 23-25.4

The Court also agreed with KBR that the WSLA “applies only to criminal offenses” and has no application

to the FCA. Carter, 135 S. Ct. at 1975.

4 While the Carter III certiorari petition was before this Court,

petitioner filed a fourth copy of his complaint (“Carter IV”). U.S.

ex rel. Carter v. Halliburton Co., 19 F. Supp. 3d 655, 658-59

(E.D. Va. May 2, 2014). In seeking to avoid another dismissal

on first-to-file grounds, petitioner argued that Carter III was no

longer pending, notwithstanding KBR’s then-live certiorari

petition. Petitioner argued that “the issues presented to the

Supreme Court could not result in an opinion that would revive

[Carter III] as neither issue challenges [the district court’s]

dismissal of the [Carter III] complaint.” Mem. in Opp. 2-3 (E.D.

Va.) (No. 13-cv-1188) [Dkt. 28] (emphasis added); see also id. at

3 (“[T]he petition for certiorari could never result in the revival

of the complaint that the district court dismissed.”). The district

court dismissed Carter IV without prejudice, holding that Carter

III was pending when Carter IV was filed. Petitioner did not

appeal.

11

4. 2015 Court of Appeals Decision. On remand,

the court of appeals received briefing on “[t]he only

issue left for [appellate] resolution,” namely, whether

petitioner was entitled to equitable tolling of the sixyear statute of limitations. U.S. ex rel. Carter v.

Halliburton Co., 612 Fed. Appx. 180, 180 (4th Cir.

2015). The court held that “equitable tolling is * * *

unavailable.” Ibid. Petitioner conceded that this

Court had “reversed” the district court’s first-to-file

ruling, by changing dismissal with prejudice “to without prejudice.” Carter C.A. Resp. to Mot. for Summ.

Aff. 3 (4th Cir.) (No. 12-1011) [Dkt. 93]. The court of

appeals concluded that “ ‘dismissal with prejudice

* * * was ‘not called for’ under the first-to-file rule,”

Carter, 612 Fed. Appx. 181 (quoting Carter, 135 S. Ct.

at 1978-1979), and remanded “for further proceedings

consistent with the Supreme Court’s opinion.” Ibid.

5. 2015 and 2016 District Court Decisions.

Before the district court on remand, KBR sought

leave to brief whether petitioner’s claim should be

dismissed with prejudice, given that his entire case

was to be dismissed under the first-to-file bar, and if

refiled, all the claims would be untimely under the

FCA’s statutes of limitations and repose. KBR Mot.

(E.D. Va.) (No. 11-cv-602) [Dkt. 95]. Petitioner responded that the court of appeals “unequivocally

direct[ed] [the district court] to dismiss this action

without prejudice, in accordance with the * * *

Supreme Court’s [o]pinion in this matter.” Carter

Ltr. 1-2 (E.D. Va.) (No. 11-cv-602) [Dkt. 96]. Petitioner insisted, “the District Court is obligated to

follow the Supreme Court and Fourth Circuit’s direc-

12

tives to dismiss the matter without prejudice.” Ibid.

(emphasis added).

The district court allowed briefing on whether

dismissal should be with prejudice. Reversing course,

petitioner argued for the first time in any court that

dismissal of the earlier-filed actions automatically revived his complaint as a matter of law. Alternatively,

petitioner argued that he should be allowed to amend

his complaint under Federal Rule of Civil Procedure

15(a)(2), and that he first-to-file analysis should look

to the time of amendment. Petitioner’s proposed

amended complaint included new “damages theories”

dating from March and July 2005, but did not

mention the dismissal of the earlier-filed actions.

Pet. App. 10; C.A. App. JA269-308. Petitioner did not

seek leave to supplement his complaint under Rule

15(d). See Pet. 12.

The district court dismissed without prejudice, rejecting petitioner’s new theories. Petitioner’s “automatic-first-filer” theory, the district court held, was

“contrary” to both “[t]he law of th[e] case and Fourth

Circuit precedent.” Carter, 144 F. Supp. 3d at 874875. Based on its review of “prior proceedings in this

case,” the district court found it “clear [that] this

Court applied the first-to-file bar at the time a complaint was filed,” id. at 875, and “[t]he Fourth Circuit

endorsed this view on appeal,” ibid.

“The district court also rejected Carter’s efforts to

sidestep the first-to-file rule through amendment.”

Pet. App. 11. The court held that “[a]mending the

complaint would not cure the first-to-file bar and

therefore is futile,” because “the law in this case and

the Fourth Circuit requires this Court to ‘look at the

13

facts as they existed when the claim was brought to

determine whether an action is barred by the first-tofile bar.’ ” Carter, 144 F. Supp. 3d at 880 (quoting

Carter, 710 F.3d at 183). The district court reasoned

that amendment was irrelevant because, under the

plain statutory text, “[a] plaintiff does not ‘bring an

action’ [for purposes of the first-to-file bar] by amending a complaint,” but rather “brings an action by

commencing suit.” Id. at 880 (quoting Chovanec, 606

F.3d at 362). While emphasizing that its conclusion

“would not change” even if the bar were nonjurisdictional, the district court noted that its reading

accorded with the rule that federal court jurisdiction

“must exist as of the time the action is commenced.”

Carter, 144 F. Supp 3d at 873 n.1, 881 (quoting

Morongo Band of Mission Indians v. California State

Bd. of Equalization, 858 F.2d 1376, 1381 (9th Cir.

1988)).

Petitioner sought reconsideration, citing the First

Circuit’s intervening decision in United States ex rel.

Gadbois v. PharMerica Corp., 809 F.3d 1 (1st Cir.

2015). See generally Fed. R. Civ. P. 59(e). The district court held that such out-of-circuit authority did

not constitute an “intervening change in controlling

law” as Rule 59(e) requires. Pet. App. 30. The district court also considered Gadbois unpersuasive, noting that the First Circuit’s discussion of this Court’s

Carter opinion was “very brief,” “failed to consider the

[decision’s] context,” and did not “give[] sufficient

weight to the plain [statutory] language.” Pet. App.

31-33. Finally, whereas requiring the Gadbois relator to re-file would have been a “pointless formality,”

809 F.3d at 6, in petitioner’s case, “dismissal and re-

14

filing could implicate significant statute of limitations

and repose problems.” Pet. App. 32-33.

6. 2017 Court of Appeals Decisions.

The

Fourth Circuit affirmed. The court rejected petitioner’s argument that the first-to-file bar was “automatically cure[d]” by the dismissal of the earlier-filed

action. Pet. App. 21. The court reasoned that under

the FCA’s plain text, “the appropriate reference point

for a first-to-file analysis is the set of facts in existence at the time that the FCA action * * * is commenced,” Pet. App. 13, and “the dismissals of earlierfiled, related actions * * * do not factor into this analysis.” Ibid. Citing this Court’s statement in State

Farm Fire & Casualty Co. v. United States ex rel.

Rigsby that the first-to-file bar “require[s], in express

terms, * * * the dismissal of a relator’s action,” the

court held that “the only appropriate response for a

first-to-file rule violation is dismissal.” Pet. App. 18

(quoting Rigsby, 137 S. Ct. at 442-443 (2016)).

The court “decline[d] to comment on the other

reasons the district court identified” to reject petitioner’s effort to circumvent dismissal through

amendment. Pet. App. 22 n.7. The court concluded

that “Gadbois is factually distinguishable” from this

case because while Gadbois “addressed a situation

where the relator sought to revise an FCA complaint

with information pertaining to the related action that

gave rise to the first-to-file defect,” petitioner’s “situation is different,” because “[r]ather than address any

matters potentially relevant to the first-to-file rule,”

his proposed amendment “simply adds details to

Carter’s damages theories.” Id. at 22. Thus, the

15

court “s[aw] no reason why that proposal would have

cured the first-to-file defect,” under Gadbois. Ibid.

Judge Wynn filed a concurring opinion to “emphasize the narrow scope” of the court’s decision, stating

that “the majority opinion does not address, much

less adopt, the district court’s reasoning that an

amendment or supplement to a complaint cannot, as

a matter of law, cure a first-to-file defect.” Pet. App.

25-26 (Wynn, J., concurring).

The Fourth Circuit denied petitioner’s request for

rehearing en banc with no judge requesting a vote.

Pet. App. 47-48. The court also denied petitioner’s

motion for leave to file an amended and supplemental

complaint under Federal Rule of Civil Procedure 15.

Order (4th Cir. Aug. 31, 2017) (No. 16-1262)

[Dkt. 74].

REASONS FOR DENYING THE PETITION

The court of appeals correctly held that petitioner’s complaint was barred by the first-to-file doctrine

and that petitioner had not made an adequate showing for leave to file an amended complaint. That

decision was correct and conflicts with no decision of

this Court or any other court of appeals. Further review is not warranted.

A. Petitioner’s Issues Are Not Properly Before

This Court

As an initial matter, petitioner has either forfeited

or affirmatively waived each of the issues set forth in

his petition. See generally United States v. Olano,

507 U.S. 725, 733 (1993) (“[F]orfeiture is the failure

to make the timely assertion of a right, waiver is the

intentional relinquishment or abandonment of a

16

known right.” (citations omitted)). None is properly

before this Court.

1. Petitioner has waived any argument that a

first-to-file violation can be cured—either automatically by dismissal of earlier-filed actions, or by filing

an amended complaint. When it suited his litigation

position, petitioner repeatedly and emphatically

embraced the position that a first-to-file violation at

the time of filing requires dismissal even after

earlier-filed actions are dismissed.

Petitioner’s two-page summary of the twelve-year

history of this case (see Pet. 7-8) neglects to mention

that when the Carter III certiorari petition was before

this Court, petitioner filed in the district court another identical complaint, styled as Carter IV. Petitioner

assured the district court that the pending petition in

Carter III did not bar the newly filed Carter IV under

the first-to-file rule because “the issues presented to

the Supreme Court could not result in an opinion that

would revive [Carter III] as neither issue challenges

the dismissal of the [Carter III] complaint,” Mem. in

Opp. 2-3 (E.D. Va.) (No. 13-cv-1188) [Dkt. 28]

(emphasis added), and “the petition for certiorari

could never result in the revival of the complaint that

the district court dismissed,” id. at 3 (emphasis

added). This was at a time when both earlier-filed

actions (Duprey and the Texas action) already had

been dismissed.

Petitioner’s brief in opposition to KBR’s Carter III

petition likewise took the position that the Fourth

Circuit “correctly decided that the district court’s

jurisdictional dismissal of the case should have been

without prejudice.” See Br. in Opp. 17 (U.S.) (No. 12-

17

1497); accord id. at 25 (“The panel’s decision was

correct * * * . ”). After this Court granted review, petitioner’s merits brief assured this Court that his

argument that the WSLA tolls the statute of limitations in civil cases (which the Court rejected) would

not “open the door to an endless stream of parasitic

lawsuits,” because “[a] related action based on the

facts underlying the pending action must be

dismissed.” Carter Resp’t Br. 58-60 (U.S.) (No. 121497) (emphasis added) (quoting Chovanec, 606 F.3d

at 362). And on remand from this Court’s ruling in

2015, petitioner told the district court that this Court

and the Fourth Circuit had issued “directives to dismiss * * * without prejudice.” Carter Ltr. 1-2 (E.D.

Va.) (No. 11-cv-602) [Dkt. 96].

By repeatedly and affirmatively embracing the

position that the first-to-file bar requires dismissal of

Carter III when it suited his litigation position, petitioner has affirmatively waived his current argument

that first-to-file violations may be cured, extinguishing any claim of error and rendering the matter “not

reviewable.” United States v. Coppedge, 490 Fed.

Appx. 525, 531 (4th Cir. 2012). This Court has consistently stated that when a party’s position before

this Court conflicts with its position below, that is a

“considerable prudential objection” to granting relief.

City of Springfield v. Kibbe, 480 U.S. 257, 259 (1987)

(per curiam); cf. United States v. Wells, 519 U.S. 482,

488 (1997) (even after this Court has granted review,

“an inconsistency between a party’s” position in lower

courts “and its position before this Court” is a valid

“consideration[] bearing on whether to decide a question on which we granted certiorari”).

18

2. At the very least, as the district court concluded, “[t]he law of th[e] case,” Carter, 144 F. Supp. 3d at

874-875, together with the related doctrine of the

appellate mandate rule, would prevent this Court

from affording petitioner relief. The district court

held that it was “clear” that it had “applied the firstto-file bar at the time a complaint was filed” and “the

Fourth Circuit endorsed this view on appeal.” Id. at

875. Petitioner did not challenge that position on his

initial appeal or before this Court, although the

earlier filed cases barring his action had then been

dismissed. Carter, 710 F.3d at 176. Nor did petitioner seek to file an amended complaint until this case

was back in district court on remand from this

Court’s decision. The district court thus ruled that

petitioner’s current theory that his case could be revived after dismissal of earlier-filed suits (either

automatically or by amendment), was “contrary” to

“[t]he law of th[e] case,” Carter, 144 F. Supp. 3d at

874-875; accord id. at 875, 880 (Fourth Circuit had

been “explicit in this analysis” and its judgment was

“law of this case”). See generally TFWS, Inc. v.

Franchot, 572 F.3d 186, 191 (4th Cir. 2009) (“[O]nce

the decision of an appellate court establishes the law

of the case, it ‘must be followed in all subsequent proceedings in the same case in the trial court or on a

later appeal.’ ”). Petitioner failed to challenge that

conclusion in its opening brief on appeal, forfeiting

any challenge to the holding that law of the case foreclosed his current position. See KBR C.A. Br. 34 (4th

Cir.) (No. 16-1262) [Dkt. 32]; see also Republic of

Argentina v. NML Capital, Ltd., 134 S. Ct. 2250,

2255 n.2 (2014) (arguments only in replies forfeited).

19

3. Moreover, the Fourth Circuit did not reach

petitioner’s contention that a first-to-file violation can

be cured by an amended or supplemental pleading. The court of appeals specifically “decline[d] to

comment” on whether an amendment could ever remedy a first-to-file violation; it simply concluded that

petitioner’s proposed amendment was insufficient

under any theory. Pet. App. 22 n.7. The Fourth

Circuit concluded that, even “assuming for the sake

of argument that [United States ex rel.] Gadbois [v.

PharMerica Corp., 809 F.3d 1 (2015),] was correctly

decided,” petitioner’s proposed amended complaint

did not make the requisite showing to overcome the

first-to-file bar even under the reasoning of that case,

because it made no reference to the dismissal of the

earlier-filed action and simply added detail to his

previously filed causes of action. Pet. App. 23. Judge

Wynn’s concurrence “emphasize[d] the narrow scope”

of the majority’s ruling, which turned “solely on [the]

grounds that [petitioner’s] proposed amendment did

not ‘address any matters potentially relevant to the

first-to-file rule, such as the dismissals of the [earlierfiled, related actions].” Pet. App. 25-26 (Wynn, J.,

concurring) (citation omitted). In short, “the majority

opinion d[id] not address” whether “an amendment or

supplement to a complaint cannot, as a matter of law,

cure a first-to-file defect.” Id. at 26.

Petitioner conceded as much in his extraordinary

motion in the Fourth Circuit for leave to file an

amended and supplemental complaint pursuant to

Federal Rule of Civil Procedure 15. But see Fed. R.

Civ. P. 1 (“These rules govern * * * proceedings in the

United States district courts * * *.”). There, petition-

20

er acknowledged that “[t]he Panel did not reach the

question of whether a proposed amendment referencing dismissals of earlier-filed, related actions could

cure the jurisdictional deficiency here.” Pet. C.A.

Mem. of Law in Supp. of Mot. for Leave to File an

Am. & Suppl. Compl. 5 (4th Cir.) (No. 16-1262) [Dkt.

67-1]. Moreover, petitioner conceded that the Fourth

Circuit had not reached that issue “because [petitioner] had not proposed such an amendment previously.”

Ibid.5 Because this Court “ordinarily do[es] not decide in the first instance issues not decided below,”

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103,

109 (2001) (per curiam) (citation omitted), that is

alone sufficient basis to deny review on that issue.

4. Petitioner also has waived any claim of error in

the Fourth Circuit’s characterization of the first-tofile rule as jurisdictional by affirmatively endorsing

that description. Petitioner’s briefing before the district court characterized first-to-file as a “jurisdictional” inquiry. Carter Opp. 3, 5-6 & n.3 (E.D. Va.)

(No. 11-cv-602) [Dkt. 21]. After the district court in

2011 ruled that “Section 3730(b)(5) is jurisdictional in

nature,” Carter, 2011 WL 6178878, at *5, petitioner’s

appellate briefing did not challenge that ruling. After

the court of appeals in 2013 affirmed that “Section

Petitioner did not seek to file a supplemental complaint

referencing the dismissal of earlier actions even though the

First Circuit’s Gadbois opinion suggested supplementation in

just that manner in December 2015, while petitioner was still

litigating the issue in the district court. But petitioner’s counsel

proposed precisely such an amendment—noting the settlement

of an earlier-filed action—in another case. See Fourth Am.

Compl. ¶ 206, U.S. ex rel. Denis v. Medco Health Sols., Inc., (D.

Del.) (No. 11-cv-684) [Dkt. 111].

5

21

3730(b)(5) is jurisdictional,” Carter, 710 F.3d at 181,

petitioner’s brief in opposition to KBR’s petition for

certiorari did not object to that characterization, but

rather stated that “[i]t is well settled that the first-tofile provision * * * is jurisdictional.” Br. in Opp. 17

(U.S.) (No. 12-1497) (emphasis added). Petitioner

first contested the first-to-file bar’s jurisdictional

nature only well into proceedings in the district court

on remand, in his 2015 reply in support of his motion

to amend, Pet. Reply Mot. Amend 3, 12 (E.D. Va.)

(No. 11-cv-602) [Dkt. 118], and raised the issue in his

Fourth Circuit opening brief only in a footnote, see

Pet. C.A. Br. 24 n.1 (4th Cir.) (No. 16-1262) [Dkt. 23].

But see United States v. Dairy Farmers of Am., Inc.,

426 F.3d 850, 856 (6th Cir. 2005) (arguments only in

footnotes waived). At a minimum, petitioner’s belated adoption of that position is foreclosed by the law of

the case and the appellate mandate rule. See pp. 1819, supra.

B. The Decision Below Implicates No Conflict

Of Authority

Petitioner contends that the decision of the Fourth

Circuit below, and the D.C. Circuit in Shea, conflicts

with the First Circuit’s decision in Gadbois. Pet. 917. There is no conflict that warrants this Court’s

review.

1. Petitioner has shown no disagreement between

the courts of appeals about whether a first-to-file defect is automatically cured by the dismissal of the

earlier-filed action. Pet. 9-17. Only the Fourth

Circuit has addressed that issue; Shea and Gadbois,

as well as district court cases petitioner identifies,

reached only the question whether an amendment or

22

supplement could remedy the first-to-file defect. See

Gadbois, 809 F.3d at 8 (“go[ing] no further” than “remand[ing] the case so that the relator may file * * * a

motion to supplement”); U.S. ex rel. Shea v. Cellco

P’ship, 863 F.3d 923, 928 (D.C. Cir. 2017)

(“address[ing] whether the district court erred

in * * * [not] allowing him to continue the action

based on his amended complaint”); U.S. ex rel. Boise

v. Cephalon, Inc., 159 F. Supp. 3d 550, 558 (E.D. Pa.

2016) (same); U.S. ex rel. Brown v. Pfizer, Inc., No.

05-cv-6795, 2017 WL 1344365, at *1, 3 (E.D. Pa. Apr.

12, 2017) (same); U.S. ex rel. Wood v. Allergan, Inc.,

246 F. Supp. 3d 772, 799-800 (S.D.N.Y. 2017) (same).

2. Petitioner is likewise mistaken that the decision below conflicts with Gadbois on whether an

amended or supplemental complaint can cure a firstto-file defect. Pet. 11-15. Gadbois addressed the narrow question of whether a supplemental complaint

under “Federal Rule of Civil Procedure 15(d) is available to cure” a first-to-file defect by pleading the fact

that earlier-filed actions had been dismissed since the

filing of the original complaint, 809 F.3d at 3, under

what the First Circuit emphasized was the “[t]he peculiar posture of th[at] case,” id. at 4; accord id. at 6

(“curious posture”). The court emphasized that a

supplemental complaint filed under Rule 15(d) was

the proper mechanism for pleading “any transaction,

occurrence, or event that happened after the date of

the pleading to be supplemented,” id. at 4 (quoting

Fed. R. Civ. P. 15(d)); accord id. at 6. The court distinguished such facts from where “the referenced

events occurred before the filing of the original complaint,” which Rule 15(d) does not address. Id. at 7

23

(emphasis added). Gadbois pointedly did not address

whether an amended pleading adding such facts

would overcome the first-to-file bar.

The Fourth Circuit’s decision is completely consistent with Gadbois. The additional facts petitioner

sought to plead in his proposed amendment “simply

add[ed] detail to [petitioner’s] damages theories” (Pet.

App. 22)—facts that necessarily “occurred before the

filing of the original complaint,” and which would not

have been appropriate subjects for a Rule 15(d) supplement under Gadbois. 809 F.3d at 7. And petitioner explicitly declined to invoke Rule 15(d), instead

proposing a “Rule 15(a)-based proposed amendment.”

Pet. App. 21-22; accord Pet. 10 (noting that while

petitioner sought to amend “under [Rule] 15(a),”

Gadbois sought to supplement “under [Rule] 15(d)”).

As petitioner conceded, “[t]he [Fourth Circuit] Panel

did not reach the question of whether a proposed

[supplement] referencing dismissals of earlier-filed,

related actions could cure the jurisdictional deficiency

here * * * because P[etitoner] had not proposed such

a [supplement].” Pet. C.A. Mem. of Law in Supp. of

Mot. for Leave to File an Am. & Suppl. Compl. 5 (4th

Cir.) (No. 16-1262) [Dkt. 67-1]; see also Pet. 10 n.1

(conceding “the Panel declined to overtly split with

the First Circuit”).

Gadbois is also distinguishable on other grounds.

Gadbois considered dismissal and re-filing a “pointless formality” because a re-filed complaint in that

case would have been timely. 809 F.3d at 4. By contrast, petitioner concedes that any case he refiled

would be untimely. Pet. 12-13; Carter C.A. Br. 26-28,

40-41 (4th Cir.) (No. 16-1262) [Dkt. 23]. Moreover,

24

Gadbois sought to supplement promptly after the

dismissal of the earlier-filed case, 809 F.3d at 4, while

the case was on its initial appeal and before the

appellate court had ruled. Petitioner, by contrast,

waited three years after the dismissal of Texas action

and four years after the dismissal of Duprey to seek

to amend, and only did so after the case was in the

district court on remand from this Court and respondent’s motion to dismiss had been largely

briefed. See pp. 6, 12, supra; cf. Gadbois, 809 F.3d at

7 (noting that “unreasonable delay in attempting to

supplement” a complaint “may suffice to ground a

denial” of such a motion).

3. Petitioner also contends that the D.C. Circuit’s

decision in Shea conflicts with Gadbois. But Shea

likewise involved a relator’s effort to “amen[d] his existing complaint,” 863 F.3d at 928 (emphasis added),

not to supplement the complaint.6 Moreover, in Shea,

as here, dismissal and refiling was no “pointless formality,” because Shea’s case would have been untimely if refiled. 863 F.3d at 928. And even to the

extent there is disagreement between the reasoning

of Shea and Gadbois, this case—where the issue was

Shea states in passing that “[a] supplemental or amended

complaint * * * could not remedy Shea’s violation of the first-tofile bar.” 863 F.3d at 929. But that lone reference to

supplemental filings was dicta in a decision that concerned

relator Shea’s request to amend a complaint, and the opinion did

not have occasion to thoroughly discuss the effect of

supplemental complaints.

6

25

neither properly presented nor passed on below—

does not present an opportunity to resolve it.7

Even if the Court concludes there is significant

disagreement between Shea and Gadbois, it should

allow the subject further time to develop in the courts

of appeals, particularly in light of criticisms of

Gadbois by other courts. See, e.g., Shea, 863 F.3d at

930-932; Pet. App. 23-24, n.8 (collecting decisions

that had criticized Gadbois’ reasoning).8

4. Petitioner is correct that courts of appeals have

disagreed about whether the first-to-file bar is

properly characterized as jurisdictional. See Pet. 3133. This case does not present a suitable opportunity

Petitioner alleges disagreement among district court cases,

Pet. 17-20, but such disagreement does not justify this Court’s

review. S. Ct. Rule 10(a).

7

8

Petitioner is correct that United States ex rel. Wood v.

Allergan, Inc. (2d Cir.) (No. 17-2191) raises the issue whether a

relator can remedy a first-to-file violation by amending his

complaint, although the case may be resolved on other grounds.

See Order, U.S. ex rel. Wood v. Allergan, Inc. (2d Cir. July 17,

2017) (No. 17-1583) [Dkt. 60] (requesting briefing on whether

relation back would be barred for an amended complaint). The

amendment issue also might be raised in United States ex rel.

Denis v. Medco Health Solutions, Inc. (3d Cir.) (No. 17-3562),

although the district court in that case ultimately dismissed the

action with prejudice based on the FCA’s public disclosure bar.

There is no reason to hold this case pending the disposition in

Wood or Denis. Those cases may be decided on other grounds,

and are unlikely to be decided for months yet. Wood is

scheduled for oral argument on February 7, 2018, and will take

at least a few months to resolve. The briefing process has only

begun in Denis; relator’s opening brief is due February 12, 2018.

The Fourth Circuit took more than four months after oral

argument to resolve this case, and Shea took nine months.

26

to review that issue because “[e]ven if the first-to-file

bar

were

to

sound

in

non-jurisdictional

terms * * * the

result * * * would not change.”

Carter, 144 F. Supp. 3d at 873 n.1. The decisions

below turned on the first-to-file bar’s plain language

and the specific allegations in petitioner’s proposed

amended complaint, not the jurisdictional nature of

the first-to-file bar. See pp. 8, 13-14, supra. The

decision in Shea likewise turned on the FCA’s plain

language rather than its conclusion that the first-tofile bar was not jurisdictional. See Gov’t Br. Amicus

Curiae 15, U.S. ex rel. Wood v. Allergan, Inc. (2d Cir.)

(No. 17-2191) [Dkt. 57] (“U.S. Wood Br.”) (dismissal is

required “regardless of whether the first-to-file bar is

jurisdictional”). Because there is no indication the

lower court’s characterization of the bar changed the

outcome, there is no basis for this Court’s review. Cf.

Johnson v. DeGrandy, 512 U.S. 997, 1003 (1994)

(“Any conflict in these two formulations is of no

consequence here. This Court reviews judgments, not

statements in opinions.” (citation omitted)).

C. The Fourth Circuit’s Decision Is Correct

The Fourth Circuit’s decision accords with the

plain text of the FCA, this Court’s understanding of

the first-to-file bar, and the purpose of the FCA.

1. The plain language of the first-to-file bar requires dismissal of petitioner’s complaint because

earlier-filed related cases “w[ere] pending when [petitioner] filed suit.” Carter, 710 F.3d at 183. The FCA

provides that “no person other than the Government

may * * * bring a related action based on the facts

underlying the pending action.” 31 U.S.C.

§ 3730(b)(5). “[T]he relevant statutory text” thus “im-

27

poses a restriction on the ‘bring[ing] of an ‘action,’ ”

which “[i]n ordinary parlance” happens “by commencing suit.”

Pet. App. 13 (quoting Black’s Law

Dictionary 231 (10th ed. 2014) and U.S. ex rel.

Chovanec, 606 F.3d at 362) (alterations in original).

“ ‘[B]rought’ and ‘bring’ refer to the filing or commencement of a lawsuit, not to its continuation.’ ”

Ibid. (quoting Harris v. Garner, 216 F.3d 970, 974

(11th Cir. 2000) (en banc), cert. denied, 532 U.S. 1065

(2001)). “Accordingly, the appropriate reference point

for a first-to-file analysis is the set of facts in

existence at the time that the FCA action under review is commenced.” Ibid. “Facts that may arise after the commencement of a relator’s action, such as

the dismissals of earlier-filed, related actions * * * do

not factor into this analysis.” Ibid.9

Even though the “first-filed suit is no longer pending,” “the filing of an amended complaint * * * cannot

alter when [petitioner] brought his action—i.e., at a

time when a related suit was pending.” Shea, 863

F.3d at 929-930. That reading is consistent with

“[t]he ‘general rule’ ” that “ ‘if an action is barred by

the terms of a statute, it must be dismissed’ rather

9 Petitioner suggests that

under the Fourth Circuit’s first-tofile bar rule, the California action or Carter I were pending

when Duprey and the Texas actions were brought, and thus the

Duprey and Texas actions were themselves barred by the firstto-file bar and could not have barred Carter III. Pet. 28-29.

Petitioner failed to preserve this argument because he did not

make it to the district court in 2011, the court of appeals during

the 2013 decision, this Court, or the district court on remand in

2015, and no lower court has ruled on it. In any event, the

Texas action was filed in 2004 before Carter I, and it remained

pending when Carter III was filed, see note 2, supra.

28

than left on ice.” Id. at 929 (quoting Hallstrom v.

Tallmook Cty., 493 U.S. 20, 31 (1989)).

“The

Supreme Court recently confirmed” (ibid. ) this reading in State Farm Fire & Cas. Co. v. United States ex

rel. Rigsby, 137 S. Ct. 436 (2016), where it noted that

a violation of the first-to-file rule “require[s], in express terms, the dismissal of a relator’s action.” 137

S. Ct. at 438. Petitioner identifies nothing in the language of the first-to-file bar that would permit an

amendment to cure a first-to-file violation.

Petitioner contends that this Court should “avoid[]

interpreting the FCA in literal * * * ways” on the

grounds that conflicts with the “purpose of the overall

statute.” Pet. 26. But petitioner’s proposed reading

is difficult to square with the FCA’s purposes. It

would “give rise to anomalous outcomes.” Shea, 863

F.3d at 930. For example, “if a relator brings suit

while a related action is pending, her ability to

proceed with her action upon the first-filed suit’s

completion could depend on the pure happenstance of

whether the district court reached her case while the

first-filed suit remained pending.” Ibid. But “Congress presumably would not have intended a relator’s

fate to depend on chance considerations such as the

extent of a particular court’s backlog and the

timeliness of a particular court’s entry of a dismissal.” Ibid. Thus, the Fourth Circuit’s reading “level[s] the playing field among relators consistent with

the ordinary operation of the first-to-file bar as conceived by Congress.” Ibid. Petitioner’s contention

that reading the first-to-file bar in accordance with

its plain terms would “grant [d]efendants immunity”

(Pet. 5) is fanciful. The FCA’s “generous statute-of-

29

limitations period—[allowing filing] within six years

of the violation or three years after the time at which

U.S. officials knew or should have known of the violation, whichever occurs last,” U.S. ex rel. Grupp v.

DHL Express (USA), Inc., 742 F.3d 51, 54 (2d Cir.

2014), provides ample time to pursue such claims.

Moreover, the real party in interest in FCA litigation, the United States, has strongly endorsed the

reading of the first-to-file bar embodied in the decisions below. In an amicus brief the United States recently filed, the government explained that “a relator

can cure a first-to-file violation only by initiating a

new suit,” not amending the complaint. U.S. Wood

Br. 17. That view is consistent with the United

States’ traditional reading of the first-to-file bar. See

Gov’t Br. Amicus Curiae 26, Chovanec, 606 F.3d 361

(7th Cir. 2010), http://goo.gl/uscYwn (“[A] first-intime qui tam complaint * * * which is subsequently

dismissed prevents a second-in-time complaint from

proceeding.”) . Thus, even the real party in interest is

unconcerned by the policy arguments petitioner

raises. Pet. 25-31.10

The United States is equally unconcerned about what

petitioner breathlessly calls “the ultimate act of hubris,” Pet. 67, KBR’s successful application for a performance bonus. The

government has long known of petitioner’s allegations but has

never chosen to rescind KBR’s payments or otherwise sanction

KBR. Petitioner’s claims would therefore likely fail on the

merits. See U.S. ex rel. McBride v. Halliburton Co., 848 F.3d

1027, 1034 (D.C. Cir. 2017) (“[That] [the Defense Contract Audit

Agency] investigated [relator]’s allegations and did not disallow

any charged costs * * * is ‘very strong evidence’ that the

requirements * * * are not material.” (quoting Universal Health

Servs., Inc. v. U.S. ex rel. Escobar, 136 S. Ct. 1989, 2003 (2016)).

10

30

2. Petitioner’s argument that first-to-file violations are automatically revived upon dismissal of the

earlier-filed action turns almost exclusively on a single statement in this Court’s 2015 decision that an

earlier-filed suit “ceases to bar” later suits “once it is

dismissed.” Carter, 135 S. Ct. at 1978, cited at Pet. i,

3, 11, 14, 15, 20, 23, 24, 30-31. As the court below explained, petitioner’s argument is “based on [an] unreasonable reading[]” of that decision. Pet. App. 15.

That decision addressed only “whether [petitioner’s]

claims must be dismissed with prejudice under the

first to file rule,” and concluded that “the [FCA’s]

first-to-file bar keeps new claims out of court only

while related claims are still alive.” Carter, 135 S.

Ct. at 1973, 1978 (emphasis added). The first-to-file

bar thus “ceases to bar suit[s]” that are filed after the

earlier filed case “is dismissed.” Id. at 1978. This

Court “did not reject, or even comment on, [the court

of appeals’] holding that a court must ‘look at the

facts as they existed when the claim was brought to

determine whether an action is barred by the first-tofile bar.’ ” Pet. App. 15 (citations omitted). Petitioner’s strained reading of this Court’s opinion is belied by his own earlier description of the decision as a

“directive[] to dismiss the matter without prejudice.”

Carter Ltr. 1-2 (E.D. Va.) (No. 11-cv-602) [Dkt. 96].11

Moreover, for all petitioner’s current emphasis on improper

water purification, those claims were dismissed in 2009 and he

did not seek to revive them. See Carter, 710 F.3d at 175. His

current claim is time-card fraud.

11 Petitioner errs in contending that the first-to-file bar is not

jurisdictional. Congress’s direction that no private relator “may

intervene or bring a related action,” 31 U.S.C. § 3730(b)(5), is

31

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

JOHN P. ELWOOD

Counsel of Record

CRAIG D. MARGOLIS

TIRZAH S. LOLLAR

RALPH C. MAYRELL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.

NW, Suite 500 West

Washington, D.C. 20037

(202) 639-6500

jelwood@velaw.com

JANUARY 2018

“an absolute, unambiguous, exception-free rule” barring access

to court. Carter, 710 F.3d at 181. United States v. Wong, 135 S.

Ct. 1625 (2015), called into question only whether certain

statutes of limitations were jurisdictional; there is “no reason to

believe” Wong “calls into question the jurisdictional character of

requirements other than statutes of limitations.” Bennally v.

United States, No. 13-cv-604, 2015 WL 10987109, at *3 (D.N.M.

Oct. 22, 2015). Nor “d[id] [Wong] * * * mean ‘Congress must

incant magic words,’ ” but only that “traditional tools of

statutory construction” must show Congress imbued a

procedural bar with jurisdictional consequences. 135 S. Ct. at

1632. Tellingly, Congress explicitly made the FCA’s public

disclosure bar non-jurisdictional, compare 31 U.S.C.

§ 3730(e)(4)(A) (2006) (“No court shall have jurisdiction * * * .”),

with 31 U.S.C. § 3730(e)(4)(A) (2012) (“This court shall dismiss

* * * .”), but left the first-to-file bar unchanged, though courts

had treated it as jurisdictional. 144 F. Supp. 3d at 881 n.6.