United States, ex rel. Benjamin Carter v. Halliburton Co., et al.

The first-to-file bar of the False Claims Act provides that “[w]hen a person brings an action under this subsection, 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) (hereinafter referred to as the “first-to-file bar”). In Kellogg Brown & Root Servs. v. United States ex rel. Carter, 135 S. Ct. 1970, 1978 (2015), this Court held that that once an earlier “pending” action is dismissed, it “ceases to bar” later suits. Now, this action returns to the Court to resolve how the later suits may proceed. The questions presented are:

1. Under the first-to-file bar of the False Claims Act, 31 U.S.C. § 3730(b)(5), may later actions proceed without refiling once all earlier actions have been dismissed, or must later actions be dismissed and refiled?

2. Is the first-to-file bar of the False Claims Act, 31 U.S.C. § 3730(b)(5), jurisdictional or not, and if jurisdictional, is the first-tofile bar applied only at time of filing, or may it be lifted by amendment, supplement, or later events?