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In the Supreme Court of the United States

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In the Supreme Court of the United States No. In the Supreme Court of the United States KELLOGG BROWN & ROOT SERVICES, INC., KBR INC., HALLIBURTON COMPANY, AND SERVICE EMPLOYEES INTERNATIONAL, PETITIONERS v. UNITED STATES OF AMERICA EX REL. BENJAMIN CARTER ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI JOHN M. FAUST JOHN P. ELWOOD LAW OFFICE OF Counsel of Record JOHN M. FAUST, PLLC CRAIG D. MARGOLIS 1325 G Street, NW JEREMY C. MARWELL Suite 500 TIRZAH S. LOLLAR Washington, DC 20005 KATHRYN B. CODD (202) 449-7707 VINSON & ELKINS LLP 2200 Pennsylvania Ave- nue, NW, Suite 500W Washington, DC 20037 (202) 639-6500 [email protected] QUESTIONS PRESENTED 1. Whether the Wartime Suspension of Limita- tions Act—a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose—applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefi- nite tolling. 2. Whether, contrary to the conclusion of numer- ous courts, the False Claims Act’s so-called “first-to- file” bar, 31 U.S.C. § 3730(b)(5)—which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohib- iting repetitive, parasitic claims—functions as a “one- case-at-a-time” rule allowing an infinite series of du- plicative claims so long as no prior claim is pending at the time of filing. (I) II PARTIES TO THE PROCEEDINGS Petitioners Kellogg Brown & Root Services, Inc., KBR Inc., Halliburton Company, and Service Em- ployees International, Inc., were defendants- appellees below. Respondent, relator Benjamin Carter, was the plaintiff-appellant below. RULE 29.6 STATEMENT Petitioner KBR, Inc. is a publicly held corporation that has no parent company, and is the ultimate par- ent of petitioner Kellogg Brown & Root Services, Inc. (KBR Holdings, LLC is an intermediate parent). KBR, Inc. is also the ultimate parent of petitioner Service Employees International, Inc. (KBR Group Holdings, Inc. and KBR Holdings LLC are intermedi- ate parents). Petitioner Halliburton Company is a publicly held company that has no parent company. Other than as discussed above, no publicly held com- pany owns 10% or more of the stock of any petitioner. TABLE OF CONTENTS Page Questions Presented....................................................I Parties To The Proceedings....................................... II Rule 29.6 Statement .................................................. II Appendix Contents .....................................................V Table Of Authorities ................................................. VI Opinions Below ........................................................... 1 Jurisdiction ................................................................. 1 Statutory Provisions Involved.................................... 1 Introduction ................................................................ 1 Statement Of The Case .............................................. 4 Reasons For Granting The Writ............................... 10 I. The Panel Has Effectively Eliminated The Statute Of Limitations For Civil Claims of Fraud Against The Government, Contrary To This Court’s Precedent And The Text and History Of The WSLA............................. 10 A. The Panel Disregarded This Court’s Instruction That The WSLA Be “Narrowly Construed” .............................. 10 B. The Panel Ignored Gabelli’s Rejection Of Indefinite Tolling ................................. 15 (III) IV C. The Decision Below Deepens A Conflict Of Authority And Sows Confusion On An Important Threshold Issue .......................................................... 17 D. This Issue Is Important And Recurring .................................................. 21 II. The Panel Has Transformed the FCA’s “First-to-File” Bar Into A “One-Case-At-A- Time” Rule, Contrary To The Conclusion of Numerous Courts....................................... 24 A. The Panel Decision Conflicts With Decisions Of Other Courts ....................... 24 B. The Panel’s Decision Is Wrong................. 28 III.This Case Is An Attractive Vehicle For Resolving Both Issues.................................... 30 Conclusion................................................................. 32 V APPENDIX CONTENTS Page APPENDIX A: Opinion of the U.S. Court of Appeals for the Fourth Circuit (Mar. 18, 2013)........1a APPENDIX B: Memorandum Opinion of the U.S. District Court for the Eastern District of Virginia (Dec. 12, 2011) ...........................................47a APPENDIX C: Order of the U.S. Court of Ap- peals for the Fourth Circuit Denying Petition for Rehearing En Banc (Apr. 23, 2013)...................77a APPENDIX D: Federal Statutes............................78a VI TABLE OF AUTHORITIES Cases Page(s) Bridges v. United States, 346 U.S. 209 (1953) ...................................... passim Campbell v. Redding Med. Ctr., 421 F.3d 817 (9th Cir. 2005) ..................................2 Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010) .......................................... 31 Curtis v. Loether, 415 U.S. 189 (1974) .............................................. 19 Gabelli v. SEC, 133 S. Ct. 1216 (2013) .................................. passim Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276 (10th Cir. 2004) .................. 5, 26, 28 Her v. Regions Fin. Corp., No. 07-cv-2017, 2008 WL 5381321, (W.D. Ark. Dec. 22, 2008)..................................... 28 In re Natural Gas Royalties Qui Tam Litig., 566 F.3d 956 (10th Cir. 2009) ........................ 24, 30 International Union of Elec., Radio & Mach. Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976) .............................................. 23 Makro Capital of Am., Inc. v. UBS AG, 543 F.3d 1254 (11th Cir. 2008) ............................ 26 Massachusetts v. United States, 435 U.S. 444 (1978) .............................................. 19 VII Cases—Continued: Page(s) Mistretta v. United States, 488 U.S. 361 (1989) .............................................. 20 RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012) .......................................... 16 Rotella v. Wood, 528 U.S. 549 (2000) .............................................. 17 Skinner v. Switzer, 131 S. Ct. 1289 (2011) .......................................... 31 United States ex rel. Batiste v. SLM Corp., 659 F.3d 1204 (D.C. Cir. 2011) ........................ 5, 28 United States ex rel. Becker v. Tools & Metals, Inc., No. 05-cv-0627, 2009 WL 855651, (N.D. Tex. Mar. 31, 2009).................................... 28 United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371 (5th Cir. 2009) ................................ 25 United States ex rel. Chovanec v. Apria Healthcare Grp., Inc., 606 F.3d 361 (7th Cir. 2010) ................................ 24 United States ex rel. Duprey v. Halliburton, Inc., No. 8:07-cv-1487 (D. Md.)................................... 6, 9 United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13 (1st Cir. 2009)................................... 25 United States ex rel. Fine v. Sandia Corp., 70 F.3d 568 (10th Cir. 1995) ................................ 28 VIII Cases—Continued: Page(s) United States ex rel. Friedman v. Eckerd Corp., 183 F. Supp. 2d 724 (E.D. Pa. 2001).................... 28 United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214 (D.C. Cir. 2003) ................................4 United States ex rel. Harris v. Alan Ritchey, Inc., No. 00-cv-2191, 2006 WL 3761339, (W.D. Wash. Dec. 20, 2006).................................. 28 United States ex rel. Koerner v. Crescent City E.M.S., Inc., 946 F. Supp. 447 (E.D. La. 1996)......................... 25 United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227 (3d Cir. 1998).................................. 29 United States ex rel. Lujan v. Hughes Aircraft Co., No. 92-cv-1282, 2000 WL 33775399 (C.D. Cal. Jan. 20, 2000) ...................................... 25 United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181 (9th Cir. 2001) ........................ 25, 30 United States ex rel. McCans v. Armour & Co., 146 F. Supp. 546 (D.D.C. 1956) ........................... 15 United States ex rel. Ortega v. Columbia Healthcare, Inc., 240 F. Supp. 2d 8 (D.D.C. 2003) .................... 26, 27 United States ex rel. Pfeifer v. Ela Med., Inc., No. 07-cv-1460, 2010 WL 1380167, (D. Colo. Mar. 31, 2010) ....................................... 27 IX Cases—Continued: Page(s) United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503 (6th Cir. 2009) ............................ 5, 30 United States ex rel. Powell v. Am. InterContinental Univ. Inc., No. 1:08-cv-2277, 2012 WL 2885356, (N.D. Ga. July 12, 2012)................................. 27, 29 United States ex rel. Sanders v. N. Am. Bus Indus., Inc., 546 F.3d 288 (4th Cir. 2008) ............................ 7, 28 United States ex rel. Shea v. Verizon Bus. Network Servs., Inc., 904 F. Supp. 2d 28 (D.D.C. 2012) ........................ 27 United States ex rel. Torres v. Kaplan Higher Educ. Corp., No. 09-cv-21733, 2011 WL 3704707, (S.D. Fla. Aug. 23, 2011) ...................................... 27 United States ex rel. Wilson v. Emergency Med. Assocs. of Ill., Inc., No. 01-cv-4558,
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