Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KELLOGG BROWN & ROOT SERVICES, INC., ET AL. v.
UNITED STATES EX REL. CARTER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 12–1497. Argued January 13, 2015—Decided May 26, 2015
Private parties may file civil qui tam actions to enforce the False
Claims Act (FCA), which prohibits making “a false or fraudulent
claim for payment or approval,” 31 U.S. C. §3729(a)(1), “to . . . the
United States,” 3729(b)(2)(A)(i). A qui tam action must generally be
brought within six years of a violation, §3731(b), but the Wartime
Suspension of Limitations Act (WSLA) suspends “the running of any
statute of limitations applicable to any offense” involving fraud
against the Federal Government. 18 U.S. C. §3287. Separately, the
FCA’s “first-to-file bar” precludes a qui tam suit “based on the facts
underlying [a] pending action,” §3730(b)(5).
In 2005, respondent worked for one of the petitioners, providing
logistical services to the United States military in Iraq. He subse-
quently filed a qui tam complaint (Carter I), alleging that petitioners,
who are defense contractors and related entities, had fraudulently
billed the Government for water purification services that were not
performed or not performed properly. In 2010, shortly before trial,
the Government informed the parties that an earlier-filed qui tam
suit (Thorpe) had similar claims, leading the District Court to dismiss
Carter I without prejudice under the first-to-file bar. While respond-
ent’s appeal was pending, Thorpe was dismissed for failure to prose-
cute. Respondent quickly filed a new complaint (Carter II), but the
court dismissed it under the first-to-file rule because Carter I’s appeal
was pending. Respondent then dismissed that appeal, and in June
2011, more than six years after the alleged fraud, filed the instant
complaint (Carter III). The District Court dismissed this complaint
with prejudice under the first-to-file rule because of a pending Mary-
land suit. Further, because the WSLA applies only to criminal
2 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED
STATES EX REL. CARTER
Syllabus
charges, the court reasoned, all but one of respondent’s civil actions
were untimely. Reversing, the Fourth Circuit concluded that the
WSLA applied to civil claims and that the first-to-file bar ceases to
apply once a related action is dismissed. Since any pending suits had
by then been dismissed, the court held, respondent had the right to
refile his case. It thus remanded Carter III with instructions to dis-
miss without prejudice.
Held:
1. As shown by the WSLA’s text, structure, and history, the Act
applies only to criminal offenses, not to civil claims like those in this
case. Pp. 5–11.
(a) The 1921 and 1942 versions of the WSLA were enacted to
address war-related fraud during, respectively, the First and Second
World Wars. Both extended the statute of limitations for fraud of-
fenses “now indictable under any existing statutes.” Since only
crimes are “indictable,” these provisions quite clearly were limited to
criminal charges. In 1944, Congress made the WSLA prospectively
applicable to future wartime frauds rather than merely applicable to
past frauds as earlier versions had been. In doing so, it deleted the
phrase “now indictable under any statute,” so that the WSLA now
applied to “any offense against the laws of the United States.” Con-
gress made additional changes in 1948 and codified the WSLA in Ti-
tle 18 U.S. C. Pp. 5–6.
(b) Section 3287’s text supports limiting the WSLA to criminal
charges. The term “offense” is most commonly used to refer to
crimes, especially given the WSLA’s location in Title 18, titled
“Crimes and Criminal Procedure,” where no provision appears to em-
ploy “offense” to denote a civil violation rather than a civil penalty at-
tached to a criminal offense. And when Title 18 was enacted in 1948,
its very first provision classified all offenses as crimes. In similar cir-
cumstances, this Court has regarded a provision’s placement as rele-
vant in determining whether its content is civil or criminal. Kansas
v. Hendricks, 521 U.S. 346, 361. The WSLA’s history provides fur-
ther support for this reading. The term “offenses” in the 1921 and
1942 statutes, the parties agree, applied only to crimes. And it is im-
probable that the 1944 Act’s removal of the phrase “now indictable
under any statute” had the effect of sweeping in civil claims, a fun-
damental change in scope not typically accomplished with so subtle a
move. The more plausible explanation is that Congress removed that
phrase in order to change the WSLA from a retroactive measure de-
signed to deal exclusively with past fraud into a permanent measure
applicable to future fraud as well. If there were any ambiguity in the
WSLA’s use of the term “offense,” that ambiguity should be resolved
in favor of a narrower definition. See Bridges v. United States, 346
Cite as: 575 U. S. ____ (2015) 3
Syllabus
U. S. 209, 216. Pp. 7–11.
2. The FCA’s first-to-file bar keeps new claims out of court only
while related claims are still alive, not in perpetuity. Thus, dismissal
with prejudice was not called for in this case. This reading of
§3730(b)(5) is in accordance with the ordinary dictionary meaning of
the term “pending.” Contrary to petitioners’ reading, the term “pend-
ing” cannot be seen as a sort of “short-hand” for first-filed, which is
neither a lengthy nor a complex term. Petitioners’ reading would al-
so bar even a suit dismissed for a reason having nothing to do with
the merits, such as Thorpe, which was dismissed for failure to prose-
cute. Pp. 11–13.
710 F.3d 171, reversed in part, affirmed in part, and remanded.
ALITO, J., delivered the opinion for a unanimous Court.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1497
_________________
KELLOGG BROWN & ROOT SERVICES, INC, ET AL,
PETITIONERS v. UNITED STATES, EX REL.
BENJAMIN CARTER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 26, 2015]
JUSTICE ALITO delivered the opinion of the Court.
Wars have often provided “exceptional opportunities” for
fraud on the United States Government. See United
States v. Smith, 342 U.S. 225, 228 (1952). “The False
Claims Act was adopted in 1863 and signed into law by
President Abraham Lincoln in order to combat rampant
fraud in Civil War defense contracts.” S. Rep. No. 99–345,
p. 8 (1986). Predecessors of the Wartime Suspension of
Limitations Act were enacted to address similar problems
that arose during the First and Second World Wars. See
Smith, supra, at 228–229.
In this case, we must decide two questions regarding
those laws: first, whether the Wartime Suspension of
Limitations Act applies only to criminal charges or also to
civil claims; second, whether the False Claims Act’s first-
to-file bar keeps new claims out of court only while related
claims are still alive or whether it may bar those claims in
perpetuity.
2 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED
STATES EX REL. CARTER
Opinion of the Court
I
A
The False Claims Act (FCA) imposes liability on any
person who “knowingly presents . . . a false or fraudulent
claim for payment or approval,” 31 U.S. C. §3729(a)(1)(A),
“to an officer or employee of the United States,”
3729(b)(2)(A)(i). The FCA may be enforced not just
through litigation brought by the Government itself, but
also through civil qui tam actions that are filed by private
parties, called relators, “in the name of the Government.”
§3730(b).
In a qui tam suit under the FCA, the relator files a
complaint under seal and serves the United States with a
copy of the complaint and a disclosure of all material
evidence. §3730(b)(2). After reviewing these materials,
the United States may “proceed with the action, in which
case the action shall be conducted by the Government,” or
it may “notify the court that it declines to take over the
action, in which case the person bringing the action shall
have the right to conduct the action.” §3730(b)(4). Re-
gardless of the option that the United States selects, it
retains the right at any time to dismiss the action entirely,
§3730(c)(2)(A), or to settle the case, §3730(c)(2)(B).
The FCA imposes two restrictions on qui tam suits that
are relevant here. One, the “first-to-file” bar, precludes a
qui tam suit “based on the facts underlying [a] pending
action.” §3730(b)(5) (emphasis added). The other, the
FCA’s statute of limitations provision, states that a
qui tam action must be brought within six years of a viola-
tion or within three years of the date by which the United
States should have known about a violation. In no cir-
cumstances, however, may a suit be brought more than 10
years after the date of a violation. §3731(b).
B
The Wartime Suspension of Limitations Act (WSLA)
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
suspends the statute of limitations for “any offense” in-
volving fraud against the Federal Government. 18
U.S. C. §3287. Before 2008, this provision was activated
only “[w]hen the United States [was] at war.” Ibid. (2006
ed.). In 2008, however, this provision was made to apply
as well whenever Congress has enacted “a specific author-
ization for the use of the Armed Forces, as described in
section 5(b) of the War Powers Resolution (50 U.S.C.
1544(b)).” Ibid. (2012 ed.).
II
Petitioners are defense contractors and related entities
that provided logistical services to the United States
military during the armed conflict in Iraq. From January
to April 2005, respondent worked in Iraq for one of the
petitioners as a water purification operator. He subse-
quently filed a qui tam complaint against petitioners
(Carter I), alleging that they had fraudulently billed the
Government for water purification services that were not
performed or not performed properly. The Government
declined to intervene.
In 2010, shortly before trial, the Government informed
the parties about an earlier filed qui tam lawsuit, United
States ex rel. Thorpe v. Halliburton Co., No. 05–cv–08924
(CD Cal., filed Dec. 23, 2005), that arguably contained
similar claims. This initiated a remarkable sequence of
dismissals and filings.
The District Court held that respondent’s suit was
related to Thorpe and thus dismissed his case without
prejudice under the first-to-file bar. Respondent appealed,
and while his appeal was pending, Thorpe was dismissed
for failure to prosecute. Respondent quickly filed a new
complaint (Carter II), but the District Court dismissed this
second complaint under the first-to-file rule because re-
spondent’s own earlier case was still pending on appeal.
Respondent then voluntarily dismissed this appeal, and in
4 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED
STATES EX REL. CARTER
Opinion of the Court
June 2011, more than six years after the alleged fraud, he
filed yet another complaint (Carter III ), and it is this
complaint that is now at issue.
Petitioners sought dismissal of this third complaint
under the first-to-file rule, pointing to two allegedly related
cases, one in Maryland and one in Texas, that had been
filed in the interim between the filing of Carter I and
Carter III. This time, the court dismissed respondent’s
complaint with prejudice. The court held that the latest
complaint was barred under the first-to-file rule because
the Maryland suit was already pending when that com-
plaint was filed. The court also ruled that the WSLA
applies only to criminal charges and thus did not suspend
the time for filing respondent’s civil claims. As a result,
the court concluded, all but one of those claims were un-
timely because they were filed more than six years after
the alleged wrongdoing.
The Fourth Circuit reversed, rejecting the District
Court’s analysis of both the WSLA and first-to-file issues.
United States ex rel. Carter v. Halliburton Co., 710 F.3d
171 (2013). Concluding that the WSLA applies to civil
claims based on fraud committed during the conflict in
Iraq,1 the Court of Appeals held that respondent’s claims
had been filed on time. The Court of Appeals also held
that the first-to-file bar ceases to apply once a related
action is dismissed. Since the Maryland and Texas cases
had been dismissed by the time of the Fourth Circuit’s
decision, the court held that respondent had the right to
refile his case. The Court of Appeals thus remanded
Carter III with instructions to dismiss without prejudice.
——————
1 The Court of Appeals held that the Authorization for Use of Military
Force Against Iraq Resolution of 2002, 116 Stat. 1498, note following 50
U.S. C. §1541, p. 312, was sufficient to satisfy the “at war” requirement
in the pre-2008 version of the WSLA. The Court of Appeals conse-
quently found it unnecessary to decide whether the pre- or post-2008
version of the WSLA governed respondent’s claims.
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
After this was done, respondent filed Carter IV, but the
District Court dismissed Carter IV on the ground that the
petition for a writ of certiorari in Carter III (the case now
before us) was still pending.
We granted that petition, 573 U. S. ___ (2014), and we
now reverse in part and affirm in part.
III
The text, structure, and history of the WSLA show that
the Act applies only to criminal offenses.
A
The WSLA’s roots extend back to the time after the end
of World War I. Concerned about war-related frauds,
Congress in 1921 enacted a statute that extended the
statute of limitations for such offenses. The new law
provided as follows: “[I]n offenses involving the defrauding
or attempts to defraud the United States or any agency
thereof . . . and now indictable under any existing statutes,
the period of limitations shall be six years.” Act of
Nov. 17, 1921, ch. 124, 42 Stat. 220 (emphasis added). Since
only crimes are “indictable,” this provision quite clearly
was limited to the filing of criminal charges.
In 1942, after the United States entered World War II,
Congress enacted a similar suspension statute. This law,
like its predecessor, applied to fraud “offenses . . . now
indictable under any existing statutes,” but this time the
law suspended “any” “existing statute of limitations” until
the fixed date of June 30, 1945. Act of Aug. 24, 1942, ch.
555, 56 Stat. 747–748.
As that date approached, Congress decided to adopt a
suspension statute which would remain in force for the
duration of the war. Congress amended the 1942 WSLA
in three important ways. First, Congress deleted the
phrase “now indictable under any statute,” so that the
WSLA was made to apply simply to “any offense against
6 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED
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Opinion of the Court
the laws of the United States.” 58 Stat. 667. Second,
although previous versions of the WSLA were of definite
duration, Congress now suspended the limitations period
for the open-ended timeframe of “three years after the
termination of hostilities in the present war as proclaimed
by the President or by a concurrent resolution of the two
Houses of Congress.” Ibid. Third, Congress expanded the
statute’s coverage beyond offenses “involving defrauding
or attempts to defraud the United States” to include other
offenses pertaining to Government contracts and the
handling and disposal of Government property. Ibid., and
§28, 58 Stat. 781.
Congress made more changes in 1948. From then until
2008, the WSLA’s relevant language was as follows:
“When the United States is at war the running of
any statute of limitations applicable to any offense (1)
involving fraud or attempted fraud against the United
States or any agency thereof in any manner, whether
by conspiracy or not . . . shall be suspended until three
years after the termination of hostilities as proclaimed
by the President or by a concurrent resolution of Con-
gress.” Act of June 25, 1948, §3287, 62 Stat. 828.
In addition, Congress codified the WSLA in Title 18 of
the United States Code, titled “Crimes and Criminal
Procedure.”
Finally, in 2008, Congress once again amended the
WSLA, this time in two relevant ways. First, as noted,
Congress changed the Act’s triggering event, providing
that tolling is available not only “[w]hen the United States
is at war,” but also when Congress has enacted a specific
authorization for the use of military force. Second, Con-
gress extended the suspension period from three to five
years. §855, 122 Stat. 4545.2
——————
2 The claims giving rise to the present suit originated in 2005, but
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
B
With this background in mind, we turn to the question
whether the WSLA applies to civil claims as well as crimi-
nal charges. We hold that the Act applies only to the
latter.
We begin with the WSLA’s text. The 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.” 18 U.S. C. §3287
(emphasis added). The term “offense” is most commonly
used to refer to crimes. At the time of both the 1948 and
2008 amendments to the Act, the primary definition of
“offense” in Black’s Law Dictionary referred to crime.
Black’s Law Dictionary 1110 (8th ed. 2004) (Black’s) (“A
violation of the law; a crime, often a minor one. See
CRIME”); id., at 1232 (4th ed. 1951) (“A crime or misde-
meanor; a breach of the criminal laws”); id., at 1282 (3d
ed. 1933) (same). The 1942 edition of Webster’s similarly
states that “offense” “has no technical legal meaning; but
it is sometimes used specifically for an indictable crime . . .
and sometimes for a misdemeanor or wrong punishable
only by fine or penalty.” Webster’s New International
Dictionary 1690 (2d ed.). See also Webster’s Third New
International Dictionary 1566 (1976) (Webster’s Third)
(“an infraction of law: CRIME, MISDEMEANOR”); American
Heritage Dictionary 1255 (3d ed. 1992) (“A transgression
of law; a crime”).
It is true that the term “offense” is sometimes used more
broadly. For instance, the 1948 edition of Ballentine’s
Law Dictionary cautions: “The words ‘crime’ and ‘offense’
are not necessarily synonymous. All crimes are offenses,
but some offenses are not crimes.” Ballentine’s Law Dic-
——————
respondent filed the operative complaint in 2011. Resolution of the
questions before us in this case does not require us to decide which of
these two versions of the WSLA applies to respondent’s claims.
8 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED
STATES EX REL. CARTER
Opinion of the Court
tionary 900.
But while the term “offense” is sometimes used in this
way, that is not how the word is used in Title 18. Al-
though the term appears hundreds of times in Title 18,
neither respondent nor the Solicitor General, appearing as
an amicus in support of respondent, has been able to find
a single provision of that title in which “offense” is em-
ployed to denote a civil violation. The Solicitor General
cites eight provisions,3 but not one actually labels a civil
wrong as an “offense.” Instead, they all simply attach civil
penalties to criminal offenses—as the Deputy Solicitor
General acknowledged at oral argument. See Tr. of Oral
Arg. 28–29.
Not only is this pattern of usage telling, but when Title
18 was enacted in 1948, the very first provision, what was
then 18 U.S.C. §1, classified all offenses as crimes. That
provision read in pertinent part as follows:
Ҥ1. Offenses classified.
“Notwithstanding any Act of Congress to the
contrary:
“(1) Any offense punishable by death or imprison-
ment for a term exceeding one year is a felony.
“(2) Any other offense is a misdemeanor.” 62 Stat.
684 (repealed Oct. 12, 1984).
The Solicitor General correctly points out that regulatory
provisions outside Title 18 sometimes use the term “of-
fense” to describe a civil violation, see Brief for United
States as Amicus Curiae 10 (United States Brief), but it is
significant that Congress chose to place the WSLA in Title
18. Although we have cautioned against “plac[ing] too
much significance on the location of a statute in the Unit-
ed States Code,” Jones v. R. R. Donnelley & Sons Co., 541
U.S. 369, 376 (2004), we have in similar circumstances
——————
3 18 U.S. C. §§38; 248, 670, 1033(a), 1964, 2292(a), 2339B, 2339C.
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
regarded the placement of a provision as relevant in de-
termining whether its content is civil or criminal in na-
ture, see Kansas v. Hendricks, 521 U.S. 346, 361 (1997).
It is also revealing that Congress has used clearer and
more specific language when it has wanted to toll the
statutes of limitations for civil suits as well as crimes.
Only two months after enacting the WSLA, Congress
passed a tolling statute for “violations of the antitrust
laws . . . now indictable or subject to civil proceedings.”
Act of Oct. 10, 1942, ch. 589, 56 Stat. 781 (emphasis
added). Congress obviously could have included a similar
“civil proceedings” clause in the WSLA, but it did not
do so.
The WSLA’s history provides what is perhaps the
strongest support for the conclusion that it applies only to
criminal charges. The parties do not dispute that the term
“offenses” in the 1921 and 1942 suspension statutes ap-
plied only to crimes, Brief for Petitioners 23; Brief for
Respondent at 24–25, and after 1942, the WSLA continued
to use that same term. The retention of the same term in
the later laws suggests that no fundamental alteration
was intended.
Respondent and the Government latch onto the 1944
Act’s removal of the phrase “now indictable under any
statute” and argue that this deletion had the effect of
sweeping in civil claims, but this argument is most im-
probable. Simply deleting the phrase “now indictable
under the statute,” while leaving the operative term “of-
fense” unchanged would have been an obscure way of
substantially expanding the WSLA’s reach. Fundamental
changes in the scope of a statute are not typically accom-
plished with so subtle a move. Converting the WSLA from
a provision that suspended the statute of limitations for
criminal prosecutions into one that also suspended the
time for commencing a civil action would have been a big
step. If Congress had meant to make such a change, we
10 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED
STATES EX REL. CARTER
Opinion of the Court
would expect it to have used language that made this
important modification clear to litigants and courts.
Respondent’s and the Government’s interpretation of
the significance of the deletion of the phrase “now indict-
able” ignores a more plausible explanation, namely, Con-
gress’ decision to make the WSLA applicable, not just to
offenses committed in the past during or in the aftermath
of particular wars, but also to future offenses committed
during future wars. When the phrase “now indictable”
first appeared in the 1921 Act, it meant that the statute of
limitations was suspended for only those crimes that had
already been committed when the Act took effect. This
made sense because the 1921 Act was a temporary meas-
ure enacted to deal with problems resulting from the First
World War. The 1942 Act simply “readopt[ed] the [same]
World War I policy” to deal with claims during World War
II. Bridges v. United States, 346 U.S. 209, 219 (1953).
The 1944 amendments, however, changed the WSLA
from a retroactive measure designed to deal exclusively
with past fraud into a measure applicable to future fraud
as well. In order to complete this transformation, it was
necessary to remove the phrase “now indictable,” which, as
noted, limited the applicability of the suspension to offenses
committed in the past. Thus, the removal of the “now
indictable” provision was more plausibly driven by Con-
gress’ intent to apply the WSLA prospectively, not by any
desire to expand the WSLA’s reach to civil suits. For all
these reasons, we think it clear that the term “offense” in
the WSLA applies solely to crimes.
But even if there were some ambiguity in the WSLA’s
use of that term, our cases instruct us to resolve that
ambiguity in favor of the narrower definition. We have
said that the WSLA should be “narrowly construed” and
“ ‘interpreted in favor of repose.’ ” Id., at 216 (quoting
United States v. Scharton, 285 U.S. 518, 521–522 (1932).
Applying that principle here means that the term “offense”
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
must be construed to refer only to crimes. Because this
case involves civil claims, the WSLA does not suspend the
applicable statute of limitations under either the 1948 or
the 2008 version of the statute.4
IV
Petitioners acknowledge that respondent has raised
other arguments that, if successful, could render at least
one claim timely on remand. We therefore consider
whether respondent’s claims must be dismissed with
prejudice under the first-to-file rule. We conclude that
dismissal with prejudice was not called for.
The first-to-file bar provides that “[w]hen a person
brings an 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)
(emphasis added). The term “pending” means
“[r]emaining undecided; awaiting decision.” Black’s 1314
(10th ed. 2014). See also Webster’s Third 1669 (1976)
(defining “pending” to mean “not yet decided: in continu-
ance: in suspense”). If the reference to a “pending” action
in the FCA is interpreted in this way, an earlier suit bars
a later suit while the earlier suit remains undecided but
ceases to bar that suit once it is dismissed. We see no
reason not to interpret the term “pending” in the FCA in
accordance with its ordinary meaning.
Petitioners argue that Congress used the term “pend-
ing” in a very different—and very peculiar—way. In the
FCA, according to petitioners, the term “pending” “is ‘used
as a short-hand for the first filed action.’ ” Brief for Peti-
tioners 44. Thus, as petitioners see things, the first-filed
action remains “pending” even after it has been dismissed,
and it forever bars any subsequent related action.
——————
4 This holding obviates any need to determine which version of the
WSLA applies or whether the term “war” in the 1948 Act applies only
when Congress has formally declared war.
12 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED
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Opinion of the Court
This interpretation does not comport with any known
usage of the term “pending.” Under this interpretation,
Marbury v. Madison, 1 Cranch 137 (1803), is still “pend-
ing.” So is the trial of Socrates.
Petitioners say that Congress used the term “pending”
in the FCA as a sort of “short-hand,” but a shorthand
phrase or term is employed to provide a succinct way of
expressing a concept that would otherwise require a
lengthy or complex formulation. Here, we are told that
“pending” is shorthand for “first-filed,” a term that is
neither lengthy nor complex. And if Congress had wanted
to adopt the rule that petitioners favor, the task could
have been accomplished in other equally economical
ways—for example, by replacing “pending,” with “earlier”
or “prior.”
Not only does petitioners’ argument push the term
“pending” far beyond the breaking point, but it would
lead to strange results that Congress is unlikely to have
wanted. Under petitioners’ interpretation, a first-filed suit
would bar all subsequent related suits even if that earlier
suit was dismissed for a reason having nothing to do with
the merits. Here, for example, the Thorpe suit, which
provided the ground for the initial invocation of the first-
to-file rule, was dismissed for failure to prosecute. Why
would Congress want the abandonment of an earlier suit
to bar a later potentially successful suit that might result
in a large recovery for the Government?
Petitioners contend that interpreting “pending” to mean
pending would produce practical problems, and there is
some merit to their arguments. In particular, as petition-
ers note, if the first-to-file bar is lifted once the first-filed
action ends, defendants may be reluctant to settle such
actions for the full amount that they would accept if there
were no prospect of subsequent suits asserting the same
claims. See Brief for Petitioners at 56–57. Respondent
and the United States argue that the doctrine of claim
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
preclusion may protect defendants if the first-filed action
is decided on the merits, id., at 60–61; United States Brief
30, but that issue is not before us in this case. The False
Claims Act’s qui tam provisions present many interpretive
challenges, and it is beyond our ability in this case to
make them operate together smoothly like a finely tuned
machine. We hold that a qui tam suit under the FCA
ceases to be “pending” once it is dismissed. We therefore
agree with the Fourth Circuit that the dismissal with
prejudice of respondent’s one live claim was error.
* * *
The judgment of the United States Court of Appeals for
the Fourth Circuit is reversed in part and affirmed in part,
and the case is remanded for further proceedings con-
sistent with this opinion.
It is so ordered.