Though the October Term at the Supreme Court does not officially start until October 6, the Justices are meeting today at the “Long Conference” to consider the enormous quantity of motions and petitions that have been submitted to the Court. One motion under consideration is petitioners’ motion to file Volume II of the joint appendix under seal in Kellogg Brown & Root Services, Inc., et al. v. United States ex rel. Carter, No. 12-1497, which is the first case specifically addressing the False Claims Act that the Supreme Court has accepted since its 2011 decision in Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885 (2011).
Kellogg Brown’s petition, which was accepted on July 1, 2014, asked the Court to decide two questions: first, whether the Wartime Suspension of Limitations Act (“WSLA”)—a criminal code that tolls the statute of limitations for offenses involving fraud perpetrated against the government when the United States is “at war”—applies to claims of civil fraud such as those brought under the False Claims Act and is triggered without a formal declaration of war; and second, whether the False Claims Act’s “first-to-file bar” allows relators to file duplicative claims so long as no prior claim is pending at the time of filing. Practically, if the Court was to decide that the WSLA applied in the given context of the wars in Iraq and Afghanistan, any claim involving fraud against the government since 2001 would not be precluded by the False Claims Act’s statute of limitations.
Given that both of the questions before the Court involve matters usually decided at the very outset of the case—the statute of limitations and the jurisdictional “first-to-file” bar—the Court’s decision in this case is likely to have a huge impact on the amount of False Claims Act cases that are filed, as well as the percentage of those cases that are then moved past the initial motion to dismiss stage. However, as expected, the Kellogg Brown case is not the only exciting case that the Court may hear this coming term. Indeed, included among the cases on the Court’s docket are Oneok Inc. v. Learjet, Inc., No. 13-271, which involves the preemptive reach of the Natural Gas Act; United States v. Wong, No. 13-1074, which is set for argument on December 10, 2014 and asks whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act is subject to equitable tolling; United States v. June, No. 13-1075, which is also set for argument on December 10 and asks whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act is subject to equitable tolling; and lastly, Warger v. Shauers, No. 13-517, which is set for argument on October 8, 2014 and involves the ability of a party to introduce juror testimony about statements made during jury deliberations that tend to show the alleged dishonesty of a juror during voir dire. As always, we will keep our eye on the High Court as these cases develop.