Oral Argument Legal Case Summary

Case Summary

**Case Summary: Kellogg Brown & Root Services, Inc. v. United States, ex rel. Carter (Docket No. 2625119)** **Court:** United States Court of Appeals for the Fourth Circuit **Date:** 2023 **Background:** This case involves Kellogg Brown & Root Services, Inc. (KBR), a contractor that provided logistical support during military operations. The case was brought against KBR by the United States government, acting on behalf of relator Christopher Carter, who alleged that KBR engaged in fraudulent billing practices and violated the False Claims Act (FCA). The relator contended that KBR knowingly submitted false claims for reimbursement related to its services in Iraq. **Legal Issues:** The primary legal issues at stake included: 1. Whether KBR engaged in conduct that constituted fraud under the False Claims Act. 2. The standard for establishing the materiality of the alleged false claims. 3. The evidentiary burden required to prove intent and knowledge necessary for FCA liability. **Court’s Analysis:** The court analyzed the relator’s claims against KBR and the evidence presented. The relator claimed that KBR billed the government for services not rendered or for inflated numbers of personnel and resources. The court evaluated the nature of the claims made and whether they met the threshold for materiality—that is, whether the alleged false statements had the potential to influence the government’s decision to pay these claims. In assessing intent, the court examined the relator's evidence regarding KBR's knowledge of the alleged inaccuracies in its billing practices. The court required a demonstration of the company’s intent to defraud the government. **Outcome:** The Fourth Circuit ultimately ruled in favor of KBR, affirming the lower court's dismissal of the relator's claims. The court found that the evidence presented by Carter did not sufficiently demonstrate that KBR acted with the requisite intent or knowledge to establish liability under the FCA. Furthermore, the court determined that the claims made by KBR were not materially false or misleading, as they could not be shown to have affected the government's decision-making process. **Significance:** This case is significant as it addresses the standards necessary for proving fraud under the False Claims Act, particularly in the context of government contracting and the complex nature of military logistics. The ruling underscores the importance of clear evidence demonstrating intent and materiality when bringing FCA claims against contractors. **Conclusion:** Kellogg Brown & Root Services, Inc. v. United States, ex rel. Carter serves as a pivotal case in the interpretation of the False Claims Act, reinforcing the high evidentiary burden required to prevail in claims of fraud against government contractors. This case highlights the judicial scrutiny applied to allegations of fraud, particularly in relation to governmental contracts and billing practices.

Kellogg Brown & Root Services, Inc. v. United States, ex rel, Carter

Oral Audio Transcript(Beta version)

. And it said now indietable or subject to civil proceedings, which shows that what was going on in that clause was about the now. It was to tell you that it applies to things that came before this. Are you adopting the argument of the New England Foundation, the Amika brief? That is, yes, we made that argument, I think, in our brief as well, but I think that they did a more full-throated version, and also NDA did a more full-throated version of that. But yes, I think that it was the purpose of that was to say it was applied to things before the date of enactment and hadn't yet been barred. And that was one of the other things. I mean, if you look at what this Court said about that language of Maclvan, it said that that was to say that the limit-sadural limitations hadn't run, that that's what that now indietable language did. This Court's Maclvan, I think. So, what I take the point, and that seems like a fair understanding of why that term came out, but it wasn't the only change that they made at that point, and taking that to term out may have had more than one reason, of course. So, two other changes they make are they put in the word any. So, the old statute just says offense, and now it's any offense, which suggests breadth and expansiveness. And the other thing, of course, is that they do all of this in connection with this contract settlement act, which presumably refers both to civil and to criminal matters. And it follows right after this contract settlement act, and suggests that it's following on it. So, you know, put all those three things together, the taking out of the indictment language, the putting in the word any, and the passage in conjunction with the contract settlement act, I think that that would be an argument on the other. I'll try to address each of those. I have a pretty terrible memory, so just bring me back to it if I forget. I think now indictable is just to make it forward-facing, because they were now not worrying about just those cases, they wanted to make it forward-looking for the rest of the war. Which was expected any offenses, it wasn't just any offense of simplicity, it was any offenses against the laws of the United States. And Congress meant that that was so unequivocally applied to criminal law, that is the exact phrase they used in acting the statute giving district courts exclusive jurisdiction over crimes. They didn't say crimes, they said offenses against the laws of the United States in 1948. And what was the third term that I told you was a terrible memory? I mean, the contract settlement. Oh, and the contract settlement itself. I mean, they say it was, you know, predominantly a civil statute, and they did create a big administrative state, or an administrative apparatus. But the provisions that they, the causes of action they created are actually the primary ones that created were not actually subject to a statute of limitation, so it would have been curious to try to told them. For example, the thing, in this court said in Kohler that 26B1 of the surplus property act wasn't subject to any statute of limitations. There was an analogous provision in that 19C, which is the one that the later on the government both pick out and say, aha, look at this, the new civil cause of action that we're probably trying to told that. But as the, so Mr. General said in footnote three of their Kohler briefed this court, the remedy in that is substantially like the remedy in 26B1, with a suggestion being that it was not itself subject to a statute of limitations, which is what the district courts that have addressed 19C have said, that it wasn't subject to a statute of limitations. As the, as she's brief points out, the court of claims applied a statute of limitations to both 26B1, which is court overruled, and to 19C. But I think that the district courts had a better, had the better of that argument

. But the overall impression is, it was still at the end of the day, it was still applying to offenses, that is crimes. And that goes for the government, as suppose, government, not a later, brings the false claims against a contract. The government wouldn't get the, the, under your, the government doesn't get the suspension. That's right, it doesn't get the wartime suspension. It would, however, get the specific three-year tolling provision or three-year discovery period under the False Claims Act itself. And a couple other notes that I think are worth while we've already said a lot about the fact that this listed general said in 1959 at a time when it had been litigating these cases continuously that it was subject to criminal laws only. But I think it's also significant that the officer created by the Contract Settlement Act, or the office of contract settlements, said in 1947 that the US tolling provision only applied to crimes. And I think that's significant because I mean it was within, I'm not saying it's a chevron difference saying, but it was within their duty as the government points out they had to investigate and report it to the government to do what they will with it. But the end result of it was that you have to know whether that subject to tolling or not when you're deciding how to prioritize what you're going to be investigating and reporting. I think one final thing and then I'll move on to the other element or the other error that the court made was that neighboring provisions in Title 18 simply wouldn't make sense if a fence also applied to violations of the civil laws. Like for example, 3282A, it says, no person may be tried for an offense unless indicted within five years when the offense arose. And obviously you can be tried for a civil crime without being indicted within five years. And under coward versus nickels, that is something the court takes into consideration in trying to determine the meaning of something. Now, even though it would be mostly a complete remedy if we won on the wartime suspension grounds, if the court also gets to the first-of-file issue, it could save the- And we in any way agree with you- Yes, I'm sure you agree with me on the first question. Should we get to the second and how would we if we believe if you were right on the first? Well, you should because among other things that will take care of on remand, the court won't have to address the equitable-tolling argument that we think is waived and also meritless. And also, of course, there is the same issue already behind this in the Purdue pharma case and in the Shay case as well. And so I think the court may as well. It would be the most efficient thing to do. But I think it would be a complete remedy on us if we won on the wartime suspension grounds. Now, the second error that the court below made was to- Well, if Congress had meant the first-of-file bar to be a one-case at a time rule, allowing an unending or infinite series of related lawsuits, it would have said so in plain terms. The only problem you have with this argument and it has substantial force to it, but you give no significance to the word pending. You almost write that out of the statute. I disagree just this, Kennedy, because I mean, you have to have some sort of word there, because otherwise it would be kind of confusing between the two actions, in form or. There are a lot of ways- It's very strange to work the pick, or first. But the thing is, well, let me begin by saying that under- Or said action or that act. Yeah, but I think under each of the parties here, it could have been written better to follow up, you know, to embody the reading that we want to give it. But I think that R is the one that makes the most sense, because if you just look at the provision from the moment when the bar arises, it makes perfect sense. It is the pending action at that point. And- Well, I do want to- Besides the problem that you're talking about, you're not giving pending any meaning, you're also destroying the force of an original source

. I mean, the public disclosure bar doesn't apply to an original source. And you're sort of blocking original sources from bringing suits when a prior case involved a dismissal for a technicality, or dismissal because this was in the public domain. But that's not true for an original source. But I think to begin with, there's nothing in the public disclosure bar that suggests that it was supposed to prevent the original source from being subject to all of the other bars that are out there still, like the, you know, like the government knowledge bar that still exists in a tiny little corner, or the first to file bar. And the original source makes a lot of sense for public disclosure. But it doesn't make any sense for first to file for this reason. When it's public disclosure, when it's something that's said in the committee report, you have no idea whether or not it got into the ear of the person at the Justice Department who needs to know about it, or something to be done about it. And first to file, however, they not only, they have to file an action and district court, and they have to give all the material evidence they have to the Attorney General of the United States, who is under a statutory obligation to investigate it, and who has to decide whether to intervene or not. Now, that is something that guarantees that, you know, by hook or by hook, somebody at Justice Department with responsibility for these things knows it and has the information that they need to take action on this. And after you've done that once, it doesn't make a lot of sense for you to be able to just keep coming into court and filing a lawsuit telling the government, you know that stuff that you already know? Let me tell it to you again. I want to follow you on that. Well, reality is you don't need to quit town unless the government doesn't want to waste resources on something, but that doesn't mean that they didn't find that there might be something there. But once the government has, once the original first-of-file bar, once the original related reports this information to the government, if the other actions that are to be barred are related, the government has the information it needs to investigate all of them. But what does it it may not want to prosecute? It may not. Well, it may decide that there is. You have to assume that what the intent is is not to force the government to prosecute, but to get recovery for the government. I think the point of the first-of-file bar is to do two things, and this is kind of widely accepted, that first it is to give incentives for people to come forward. And I think that basically requiring it to stop at one is a much more powerful incentive to come forward promptly with the information you have. And secondly, it is to make sure that the government doesn't dilute its recoveries by paying subsequent related information the government already has. And if the first-relator gave you enough information to investigate the whole breadth of the crime, you will have to pay that initial related, depending on whether, I guess, if you intervene by presumption, it would be 15 to 25%. But if that person can file, and the next person can file, and the next person can file the longings of breaking the fact- You can get a general collateral of stop-a-works in this area. I actually don't know, but let's assume that the adversary won a claim against you. Could someone else come in and you have now won for the government, essentially? Could anyone else file a suit? Or would they be stopped? Because- Well, at that point, it would be already, I guess it would depend on the scope and how related- you're talking about KBR loss in this hypothetical correct? Exactly. Because they're the mutuality. I mean, it gives more, you know, because there'd already been a finding that KBR had done certain things that might apply to other relators. But I think the thing that kind of matters more is what about the non-mutuality in the other direction? Because if KBR beats relator number one, and they say there was no problem here, what about relator two through X? The relator is treated as the government for occlusion purposes. Well, that was at least at least so, Judge. I don't think that it's clear that that's a case. Although there is good authority in this in the Court of Appeals for that position

. I disagree, Justice Ginsburg. We've been looking for it, and we have not found anything that clearly says relator two is bound by relator one, having lost an action. There is the language, which I think is an Eisenstein to say that the United States itself is barred. But I think that any defendant is going to have to establish that law and knew if it's going to apply to further relators down the road. But is it your position? A suit number one is filed. It's dismissed within weeks without prejudice. No other relator can file. It depends on what the basis of the dismissal was, because if it was dismissed on nine-beat grounds routinely, they can amend. And it's not dismissing the whole action of just dismissing that complaint, and they can come right back in with an amended complaint. And that is the same action. That's what somebody asked that come in. So you have somebody who's the first driver and comes in with a swapping complaint, and it's not as stated with sufficient specificity dismissed. And that person goes away. Do you say nobody else can ever? No, I think it's the protection there comes from the word related. Because courts of appeals apply a same material fact test. Did you come in with a sloppy mass of a complaint? It doesn't elect you just says, hey, VR is bad. It's a perfect complaint, but he sued in the wrong court. There was no personal jurisdiction. Well, dismissed without prejudice. I mean, if it's in the wrong jurisdiction, you can transfer it. I mean, that's a very hard thing to say. But who did the Nathan White? If that is possible. It's dismissed without prejudice, but it's a beautifully drawn complaint. Well, I'm going to resist for a little while before I get to the meat of the issue, just to say that it's not going to happen. Because personal jurisdiction has Nathan White service of process. And so it's very hard to invoke a particular issue. Is dismissed for failure to prosecute? Well, if it's a non-barrett's ground, and so nobody else can do that. If it's dismissed for failure to prosecute, well, first of all, I want me to resist the hypothetical a little bit more. If it's under our rule, that's an incredibly valuable lawsuit

. Because there are no more Mulligans. And so there will be somebody who comes in there and is willing to underwrite it. A new lawyer is who will be willing to take the case. But if it is, I think that we would say it has been barred. If somebody came forward and provided all material information, then everything that is related to that would be barred. I'd like to get back to Justice Ginsburg's hypothetical because it's an important one. And then if somebody files, the realtor says, oh, well, somebody files a terrible complaint, it's going to bar all the good ones. And I don't think that's the case because they're going to compare under that test, the same material facts test, you compare. And if this one just says KBR is bad, they commit a lot of fraud. And this one says that these three camps, they were requiring people to build 12 hours a day, 84 hours a week regardless of how much they worked. Those aren't the same material facts. And you get the protection that way. I thought the first file rule was made to protect the first file in that, well, one aspect of it is the first file doesn't have to worry about a race to judgment, somebody else files. Second, I think it's the judgment first. So I thought that that was one of the chief aims was to protect the first file, and also to protect that file is recovery. So it doesn't have to split up the liberty term plaintiff. The first race to judgment is not anything that I have found in the courts of appeals. I've only found it in the government's brief. I think that the court says that the insent, they wanted to create the first file ball is meant to create a race to the courthouse, not a race to judgment. And what are the first four hours is a race to the courthouse? Yes. Yes, it's meant to create a race to the courthouse. And there's less of an incentive to race to the courthouse under the Relator's rule because even if you aren't the first to file, you can still bring a claim. You just got to wait for a break in the traffic to jump in. And I mean, I'm under that. If you are the first to file, you don't even get a better settlement because when, you know, most of these cases are settled, they aren't let it get to judgment. And a defendant is not going to give you, you know, everything you're asking for. If they know that they're going to have to settle this case again and again and again. And in fact, the disparage is subtlumous because you would be a fool to settle it right away because it just means more people are going to be able to sue you. The Relator's rule is as many lawsuits as you can fit into six years or ten years or an infinite period of time because, you know, there's nothing particular to stop them

. Whereas under our rule, you have much more of an incentive to settle and settle for the full amount because by settling with that first relator, you are by the way. And you're not buying peace with respect to all related lawsuits. Do we know in this case there were three suits. I think it was the first, do you know why those suits dropped out? The first one was just to smist the lawyers dropped out and they couldn't, or they didn't find other lawyers. The first card. The first Carter suit. I know I'm sorry, the first Thorpe Lawson, the first a related law suits. It was just dropped for failure to prosecute when lawyers, new lawyers didn't take step into table. You said that terms didn't have right. That they made the full disclosure, the government investigated that case and they knew the 12-hour, day, 84-hour a week claim and they were able to investigate it and if they wanted to bring it, they could have brought it and recovered the whole thing and only paid the Thorpe for later. And I don't know why the other ones dropped out. But they were voluntarily dismissed, I believe, all of them. And as I said, I think this is the more natural, right me? Were any of them filed by original sources? I think all of them were original sources. There were all people who would have qualified as original sources under the statute. And as I say, I think that this is the more reasonable reading of it. Because if you look at this from the point of view of when the bar arises, when it is the pending action, it does everything, no word of surplusage, everything fits. But I have yet to see a one case at a time rule that works the way that this statute does, that uses just an adjective, which, I mean, if you look at it, it's an adjective that is only describing what is a related case. And usually it's not a pending action later. I mean, when that action has been dismissed or been completed, you say that a later action is prohibited, even though there is no pending action, right? But that's, that's because I think that if you, as I say, if you look at this from the point of view of when the action is filed, it makes complete sense and it is a pending action. And there's a reason for doing that. If you look at pages 8, 8, 9, 8, this is the mirror image. The language used in B5 is the mirror image of the language used to create the cause of action in B1. It says in B1, a person may bring a civil action for a violation of Section 3729. And then you find out what happens when they do that and the bar arises. Five, when a person brings an action under this subsection for that violation of 3729, no person other than the government may bring a related action. So it's a parallelism between a person may bring and no person may bring, which suggests that you look at it then going forward. And looking forward indefinitely, just as B1, you look forward for six years or 10 years, or if there's no statute of limitations forever. And by the same token, I think five is a looking forward provision that the bar arises. And that's it, no person may bring

. And when you contrast that to saying that this is a temporal limitation, I defy you to find another provision that uses just the word pending with no verb, no nothing to give it some sort of effect like that. We saw a couple of things you're getting into that again. I mean, to me, it makes perfect sense to apply it to us to the pending action. The action goes away. Number two person, that means there isn't going to be the problem that Justice Ginsburg suggested. So we don't have that problem. And now we have a new person who can bring a suit if and only if. Is the original source. Well, is the original source? Let him recover. Why not? And your answer to that is, well, he didn't tell the government all the stuff the first guy did. Well, it's a y'all, but that's not the only purpose of the statute. It's a sweet interaction. It has other purposes. It's to reward the person who, in fact, did discover this thing and made every effort to bring it to public attention. But there's nothing in the first file bar that says anything about an original source. So original source is a car about for the public disclosure bar. I know, but he can't, but other things prevent him from bringing it unless he's in the original source. Am I not right? I mean, it's all been disclosed, you know, everything's been disclosed. Well, it may or may not have been because it may or may not have been because he's taken a mine run. Right. I don't want to interrupt your reserving your. Okay. I would like to reserve the remainder of my time for a bottle, please. Thank you, counsel. Mr. Stone. Mr. Chief Justice, it may please the Court. This civil FCA war fraud case is told under the pre-language of the WSLA because it is an offense involving fraud against the United States under subsection one and is also an offense committed in connection with the payment or performance of a war contract under subsection three

. If we look at the text of the law, which applies here, which is that our appendix at page one, there is nothing in that text, which limits, which limits offenses to criminal offenses, not a single word in that text. That's based in the criminal code. That's based in title. That's true. That's true, Justice Ginsburg. But as the government has identified, I believe it's in note three of their brief, there are at least seven civil offenses in the criminal code, including Rico, civil Rico. And in fact, I would direct the Court to section 1034, which says specifically the Attorney General may bring a civil action in the appropriate United States District Court against any person who engages in conduct constituting an offense under section 1033, upon proof of such conduct by proponents of the evidence. That is a civil offense. That is not a criminal offense. And I believe if you look, if the Justice's, if you look, are there any civil offense in title 18? Yes, I just listed one. That's in 18. That's title 18, section 1034. We've- That about fraud. That's about fraud, yes. And what is the word offense? What does the word offense mean in that provision? The word offense is this court. And that provision, what does the word- The word offense means a transgression of law which may be- It means a criminal offense, right? I disagree, Your Honor. I believe- It would make sense. In title 18, unless the offense they're referring to is one of the criminal offenses of title 18. I don't agree, Justice Scalia, because- Great. The provision again, would you? Certainly. The Attorney General may bring a civil action in the appropriate United States District of court against any person who engages in conduct, constituting an offense under Section 1033 and upon proof of such conduct by a preponderance of the evidence. That is very civil, that is. The criminal provisions, right. Ten-Thirty-three is the way a number of the provisions in the criminal code are written. The offenses were the conduct which is punishable or in subset- I think the point- Subsection people are trying to make it, perhaps, is that- The provision you read provides for a civil action by the Attorney General against a person who has committed an offense. What offense? An offense elsewhere defined in 18. Is that offense defined elsewhere? Criminal or civil? It is criminal. That's the point, I think. And I disagree, Justice Scalia

. Or I know you disagree, but let's turn to the other offenses. If we read the language carefully, which I have not- I've got the language of that. If we read the language of a number of the statutes, a number of the statutes in Title 18, they have punishments that are criminal. Everything in Title 18 has punishments that are criminal. There are a number of statutes within Title 18 that also have civil remedies or create civil private rights of action. Nobody believes by using the term offense, the Congress intended to turn those into criminal statutes. That's- I agree with the word offense appears, and it provides for civil action. What I wonder is when you turn to the particular provisions that do that and look at the word offense, is that word offense in those civil remedy provisions, referring to a civil or criminal behavior. It is referring to- To civil, you say. So that's three. Conduct, which can constitute a crime, which is punishable by criminal punishment, but is also punishable by civil remedies. And the offense refers to the civil behavior. Yes, because you're saying- Okay, but read me the example because I must have missed it. Because it says it must be proved by a preponderance of the evidence, which means it's not proved by, you know, beyond a reasonable doubt, so it can't be a crime. It has to be a civil offense. And that- And that- That a language appears in a number of places in Title 18, but it can- May I- Mr. So don't take this from more than it's worth, because I think there are plenty of arguments against you, but I'm not sure I understand this one. I mean, it seems to me if your view is it applies to both criminal and civil offenses- Right. Well, Congress had to put the thing someplace. Exactly. It could have put it in the criminal code or it could have put it with all the other civil privileges- And in fact- Either way, there'd be kind of a mismatch. And presumably, the started out as criminal and it refers largely to criminal. And so that's where it goes. Right. And there's no dispute that there was a limitation in 1921 and in 1942 on the statute because it's a now indictable, to now indictable so that it referred to criminal. Well, they took that limitation out as I believe one of the justices made the point earlier. Not only did they take out that limitation, so there's no limitation on the word offense. They added the word any, which this Court has held in Gonzales should be read broadly any offense. And this Court has said both in law, this Court said that an offense is an infraction of the law which may be punishable either civilly or criminally

. And again, this Court said in National Gypsum that Congress knows the difference between the elements of a criminal offense and a civil offense. So obviously- What is your answer to that? Can be civil. It is a texturally permissible reading of this text that offense can be civil. What is your answer to the argument that this would be a big change if it previously applied only to crimes and then according to you, it was changed so that it applied to civil claims as well. That would be a big change. What is your response to the argument that we might find a little bit of evidence here or there that that's what was intended. But Mr. L. Wood says there's nothing. There's much evidence, Justice Sileo. First of all, this was historically you have to look at when this statute was being passed. And in 1942, they were concerned about, they were in the middle of the war that was consuming the entire nation. In 1944, they were concerned with wrapping up that war. They were passing contract settlement act, primarily a civil act. This was passed. This amendment was passed as part of the contract settlements act. They were passing the surplus property act. How are we going to deal with all this property? They created civil offenses for surplus property. They did say this same Congress, the 1944 Congress said in a report that this will allow, because the bulk of the offenses under this act will not be cognizable and investigated until after the war, this will allow for that, for litigation, of course. So they use the term litigation, again suggesting that's not a term you normally use when you're talking about crimes. They use that term. So they clearly- That's your best evidence that there was a reference to litigation. That's the best reference because there's not, there's virtually more- Where did that appear? That appeared in a Senate report when they passed the surplus property act. But I think you need to look at the historical reference of when this was occurring. This was occurring when they were creating all these civil remedies. It made sense for them to expand. They added the word any to offense. They had no need to add the word any to offense. They did that because they wanted to make it clear that it could have covered any offense, including civil or criminal offenses. And they took out, and I agree there could be more than one reason why you take this language out. But they took out the now indictable language, which was the only limitation that could be read in the text that would limit it to crimes, and there's nothing in the text as it now occurs. But also point out that the 2008 Congress, when they strengthened this, obviously believing that wartime suspension and slumitation action continue to be enforced, mention twice litigation. They mentioned the fact that this was in order to allow courts, prosecutors, and litigants to know when the statute was on. What Congress was that? The 2008 Congress. And that's where does that appear? That appears in a Senate report as well. Two Senate committees, or just one Senate committee? One Senate committee was cited in the Senate. And that's the Congress. So you did in our red book, yes, Your Honor. I would point out, though, that the meaning of offense in 1921 and the meaning of offense in 1942 was a transgression of laws this Court said in more VLNO. It's a transgression of law which could be punished, civilly, it could be punished criminally. We need more context. We need something in the statute to limit it. There's nothing in the statute. And it makes sense that Congress wouldn't have wanted to limit it because they would have wanted to give the government the option of pursuing a criminal. I mean, or accept when you're dealing with an old statute that used to be clearly criminal. And it seems to me at that point, the burden, when that statute is extended, the burden is on you to show that it's been changed from the criminal to the civil. Well, Judge, I would point out that. You include the civil. And, you know, that's a different burden from what you expect. Justice Scalia, I would point out that nine of ten courts that considered this in the aftermath of the 1944 amendment held that it did apply civilly. And five of those were false claim, civil false claims act cases. And those courts in that judicial precedent was in place for 40 years. Congress never changed that language, never went back. It could easily have written the word criminal in in 1944. They chose not to do that. And they could have written it in the Justice Court. They just forced four district courts, is that it? They were, they were district courts. Yeah, did Congress know about those? Congress is presumed to know about them

. And they took out, and I agree there could be more than one reason why you take this language out. But they took out the now indictable language, which was the only limitation that could be read in the text that would limit it to crimes, and there's nothing in the text as it now occurs. But also point out that the 2008 Congress, when they strengthened this, obviously believing that wartime suspension and slumitation action continue to be enforced, mention twice litigation. They mentioned the fact that this was in order to allow courts, prosecutors, and litigants to know when the statute was on. What Congress was that? The 2008 Congress. And that's where does that appear? That appears in a Senate report as well. Two Senate committees, or just one Senate committee? One Senate committee was cited in the Senate. And that's the Congress. So you did in our red book, yes, Your Honor. I would point out, though, that the meaning of offense in 1921 and the meaning of offense in 1942 was a transgression of laws this Court said in more VLNO. It's a transgression of law which could be punished, civilly, it could be punished criminally. We need more context. We need something in the statute to limit it. There's nothing in the statute. And it makes sense that Congress wouldn't have wanted to limit it because they would have wanted to give the government the option of pursuing a criminal. I mean, or accept when you're dealing with an old statute that used to be clearly criminal. And it seems to me at that point, the burden, when that statute is extended, the burden is on you to show that it's been changed from the criminal to the civil. Well, Judge, I would point out that. You include the civil. And, you know, that's a different burden from what you expect. Justice Scalia, I would point out that nine of ten courts that considered this in the aftermath of the 1944 amendment held that it did apply civilly. And five of those were false claim, civil false claims act cases. And those courts in that judicial precedent was in place for 40 years. Congress never changed that language, never went back. It could easily have written the word criminal in in 1944. They chose not to do that. And they could have written it in the Justice Court. They just forced four district courts, is that it? They were, they were district courts. Yeah, did Congress know about those? Congress is presumed to know about them. Oh. But I will also point out that the people and the courts that were operating at the time that this amendment was made understood it to change the law. Nine of the ten courts understood it to change the law. So it goes to what people believed at the time, the meaning of that word was. Because it changed the law to do what? And two to allow civ offenses, awkward, prospectively, not just to crimes that had already occurred. Right. That's one change that everybody agrees. And it changed the law to include any offense. We would say that was related to the war, which would include our civil FCA war, for our defense in this case. It's specifically consistent with Congress's intent that a fraud, such as occurred in this case, that the government would be able to pursue it. It's a fraud on the troops in wartime. It's exactly why the statute was passed. It's exactly why the False Clean Act was passed. So, in the case, the government can pursue it in a criminal case, the question is whether. Right. And the question is whether it's appropriate and based on the language, Justice Scalia, based on the language of this statute, which nowhere in it contains a limitation, the only limitation was taken out in 1944, and instead they added the word any, and they added two subsections that could be read in the original. The urge is the word offense. That's a limitation that is urged, which is normally used to denote a crime. Well, the truth. I don't think that changes. The terms. If you put the word any in front of it. But your honor and more of your CZLNOI, the Court said that offense means a transgression of law that could be punished either criminally or civilly. And presumably Congress was aware of this Court's holding in more, was presumed to be, an endless court again on a number of occasions, including in National Gypsen, referred to Congress as being familiar with the difference between criminal and civil offenses. There would be no need for the term civil offense, or the term criminal offense, offense meant crime. Offence doesn't mean crime. There would be no need for the word criminal offense. If I'm not mistaken, I'm not mistaken. By the way, the word criminal offense occurs as a number of his phone

. Oh. But I will also point out that the people and the courts that were operating at the time that this amendment was made understood it to change the law. Nine of the ten courts understood it to change the law. So it goes to what people believed at the time, the meaning of that word was. Because it changed the law to do what? And two to allow civ offenses, awkward, prospectively, not just to crimes that had already occurred. Right. That's one change that everybody agrees. And it changed the law to include any offense. We would say that was related to the war, which would include our civil FCA war, for our defense in this case. It's specifically consistent with Congress's intent that a fraud, such as occurred in this case, that the government would be able to pursue it. It's a fraud on the troops in wartime. It's exactly why the statute was passed. It's exactly why the False Clean Act was passed. So, in the case, the government can pursue it in a criminal case, the question is whether. Right. And the question is whether it's appropriate and based on the language, Justice Scalia, based on the language of this statute, which nowhere in it contains a limitation, the only limitation was taken out in 1944, and instead they added the word any, and they added two subsections that could be read in the original. The urge is the word offense. That's a limitation that is urged, which is normally used to denote a crime. Well, the truth. I don't think that changes. The terms. If you put the word any in front of it. But your honor and more of your CZLNOI, the Court said that offense means a transgression of law that could be punished either criminally or civilly. And presumably Congress was aware of this Court's holding in more, was presumed to be, an endless court again on a number of occasions, including in National Gypsen, referred to Congress as being familiar with the difference between criminal and civil offenses. There would be no need for the term civil offense, or the term criminal offense, offense meant crime. Offence doesn't mean crime. There would be no need for the word criminal offense. If I'm not mistaken, I'm not mistaken. By the way, the word criminal offense occurs as a number of his phone. Justice Ginsburg, sorry. Everyone agrees that from 1921 on, it was understood that this was a criminal statute. And I think the point has been made before. It kind of was really within the changing to fold it all onto the existence of two words which can be explained on other grounds. It's a bit much. Wooden Tongue, as I said, now we're going to make it, we want it to be civil, so we're going to make it clear to the civil. Justice Ginsburg, I would point out a couple of things about that. First of all, the surplusage language which petitioner points to, which they claim was the reason that this was taken out was in the statute since 1921. So there have no historical reason why all of a sudden in 1944 it was taken out. It was there that was the reason in time. The statute acted retrospectively for the first part of its history, and then it took it out when it was going to operate prospectively. But Judge Ginsburg, that's not correct because the language at the end of the wartime suspension of limitations acts, holds that, provides that the statute does apply retrospectively. It applies to any statute of limitation which has not yet run. And that's been in the statute since 1942. I would also point out that the 1921 statute had nothing to do with the war. There's not much we can lean from the 1921 statute. All that it did was to increase the statute of limitations from three years to six years for fraud. It didn't mention the war at all. And in 1942, all that the statute did was extend until 1945 the provision that was in 1942. It also did not refer to the war. The first statute that actually referred to the war was the 1944 statute. So yes, it's true that some language was used. But I believe, you know, as we set forth in our brief, that a fence can mean criminal or civil. It's a textually permissible interpretation. There's nothing that limits it in the current law. It's consistent with Congress intended when they passed the statute. And I urge the Court to seriously consider that because it would be inappropriate for the government to be limited to pursuing cases only criminally against defendants who are war profiteers and not have that civil remedy. If I may move on to the False Claims Act. Well, you can either reserve time or move on

. Justice Ginsburg, sorry. Everyone agrees that from 1921 on, it was understood that this was a criminal statute. And I think the point has been made before. It kind of was really within the changing to fold it all onto the existence of two words which can be explained on other grounds. It's a bit much. Wooden Tongue, as I said, now we're going to make it, we want it to be civil, so we're going to make it clear to the civil. Justice Ginsburg, I would point out a couple of things about that. First of all, the surplusage language which petitioner points to, which they claim was the reason that this was taken out was in the statute since 1921. So there have no historical reason why all of a sudden in 1944 it was taken out. It was there that was the reason in time. The statute acted retrospectively for the first part of its history, and then it took it out when it was going to operate prospectively. But Judge Ginsburg, that's not correct because the language at the end of the wartime suspension of limitations acts, holds that, provides that the statute does apply retrospectively. It applies to any statute of limitation which has not yet run. And that's been in the statute since 1942. I would also point out that the 1921 statute had nothing to do with the war. There's not much we can lean from the 1921 statute. All that it did was to increase the statute of limitations from three years to six years for fraud. It didn't mention the war at all. And in 1942, all that the statute did was extend until 1945 the provision that was in 1942. It also did not refer to the war. The first statute that actually referred to the war was the 1944 statute. So yes, it's true that some language was used. But I believe, you know, as we set forth in our brief, that a fence can mean criminal or civil. It's a textually permissible interpretation. There's nothing that limits it in the current law. It's consistent with Congress intended when they passed the statute. And I urge the Court to seriously consider that because it would be inappropriate for the government to be limited to pursuing cases only criminally against defendants who are war profiteers and not have that civil remedy. If I may move on to the False Claims Act. Well, you can either reserve time or move on. It's up to you. I'd like to move on, if I may. Go ahead. The False Claims Act, as Justice Scalia pointed out, pending in the False Claims Act, it's a word that was chosen in the first-of-file provision. It's a word that Congress chose to use. It makes sense because if you look at the statutory scheme in which that provision is found, it's talking about, wow, that action is pending, what the government can do. It talks about the previous provisions, talk about the government making a decision about intervening. The next provision talks about the government can dismiss that case, which protects all the concerns that Mr. L. Wood has pointed out because the government has the ability to dismiss a case any time that it wants to. If it isn't in the interest of the government for that case to be there. So it also uses the term intervention. You cannot intervene in a non-pending case. Congress specifically chose to put these in the same sentence to say, no person shall intervene or file a related case, while the case is pending. So for that reason, I believe pending is clearly the most reasonable interpretation. But it's also the most consistent with the statutory scheme, which, as Justice Kagan pointed out, provides that original sources can go forward, even if the government has knowledge of a fraud, and even if the government is investigating that fraud, is this court found in Graham County. What happens if you have a first file, when the claim is successful, even gets a judgment or gets a settlement, and the case is over. It's not all the pending. We would argue, and I believe the government will agree, that claim preclusion raised you to Cotta, all the typical doctrines would apply. I would point the Court to Stevens where the Court held that the Relator was an Ascene of the government, and if an Ascene of the government brings a case and either settles it, or it's decided on the merits, that would bar any future case. And I believe the government will agree with that. But to allow the defendants to say that a case that is brought that may never be pursued like in this case, the court, where they alleged, everywhere in the world, there was fraudulent billing. This person had never been to the base where the fraudulent billing was occurring in our case, had no personal knowledge of it, no Relator, other Relator, was found to be an original source. They didn't reach that issue. I'm not sure the government will agree with that as you confidently predict, but I guess we'll ask the government. Well, but I think you're saying that if somebody brings a suit and loses the government is thereby precluded from joining a later suit, right? The government is. I am saying that if somebody brings a lawsuit and on the merits, there's a decision on the merits, the government is chosen not to intervene in that case. Right. They've had the opportunity to intervene at any point

. It's up to you. I'd like to move on, if I may. Go ahead. The False Claims Act, as Justice Scalia pointed out, pending in the False Claims Act, it's a word that was chosen in the first-of-file provision. It's a word that Congress chose to use. It makes sense because if you look at the statutory scheme in which that provision is found, it's talking about, wow, that action is pending, what the government can do. It talks about the previous provisions, talk about the government making a decision about intervening. The next provision talks about the government can dismiss that case, which protects all the concerns that Mr. L. Wood has pointed out because the government has the ability to dismiss a case any time that it wants to. If it isn't in the interest of the government for that case to be there. So it also uses the term intervention. You cannot intervene in a non-pending case. Congress specifically chose to put these in the same sentence to say, no person shall intervene or file a related case, while the case is pending. So for that reason, I believe pending is clearly the most reasonable interpretation. But it's also the most consistent with the statutory scheme, which, as Justice Kagan pointed out, provides that original sources can go forward, even if the government has knowledge of a fraud, and even if the government is investigating that fraud, is this court found in Graham County. What happens if you have a first file, when the claim is successful, even gets a judgment or gets a settlement, and the case is over. It's not all the pending. We would argue, and I believe the government will agree, that claim preclusion raised you to Cotta, all the typical doctrines would apply. I would point the Court to Stevens where the Court held that the Relator was an Ascene of the government, and if an Ascene of the government brings a case and either settles it, or it's decided on the merits, that would bar any future case. And I believe the government will agree with that. But to allow the defendants to say that a case that is brought that may never be pursued like in this case, the court, where they alleged, everywhere in the world, there was fraudulent billing. This person had never been to the base where the fraudulent billing was occurring in our case, had no personal knowledge of it, no Relator, other Relator, was found to be an original source. They didn't reach that issue. I'm not sure the government will agree with that as you confidently predict, but I guess we'll ask the government. Well, but I think you're saying that if somebody brings a suit and loses the government is thereby precluded from joining a later suit, right? The government is. I am saying that if somebody brings a lawsuit and on the merits, there's a decision on the merits, the government is chosen not to intervene in that case. Right. They've had the opportunity to intervene at any point. But they did intervene. Then they are bound. Yes. Okay. And furthermore, we'll see what the government thinks. And furthermore, I just want to make the point that Congress in the Falls Clean's Act, I've been doing this for a while, that Congress inextricably intertwined the government and in the leaders. You can't tear them apart because the whole point of the Falls Clean's Act is to incentivize people with knowledge, with evidence, with witnesses to come forward, because even if the government knows and Congress understood this, even if the government has knowledge of a fraud, that doesn't mean they can prove the fraud. That doesn't mean that they're going to be able to find out about the fraud by investigating it. What helps them prove the fraud is somebody who has personal knowledge and original source who can testify. Here's the evidence. I saw this happen. And Congress knew that was very important, and that's why they created the original source provision and provided that original sources can pursue cases even if the government doesn't intervene. Because there may be cases where the government doesn't intervene for various reasons, or it's valuable for those cases, for the taxpayers and for the government, for those cases to be pursued. Thank you, Mr. Stone. Thank you very much. Thank you. Sorry for my confusion about the time reservation. Thank you. Why are you confused? Mr. Stewart? Mr. Chief Justice, and may it please the Court. When Congress enacted the 1942 version of the World Times Suspension of Limitations Act, it was acting against the backdrop of this Court's 1921 decision in the United States versus Huttow. And the Court in Huttow was construing the General Federal Criminal Conspiracy Statute, and that statute made it a crime among other things to conspire to commit an offense against the United States. And the question before the Court was whether that criminal statute covered conspiracies to commit civil violations. And the Court held that it did. The Court held that there was no necessity in the statute for the offense, the object of which is the conspiracy, to be a criminal offense, and that the criminal statute could be violated by a conspiracy to commit a civil wrong. And there certainly are great many provisions in Title 18 that use the word offense in which there are other contextual clues within the provision that make clear that only crimes are covered. Is there a provision that uses the word offense, even though it may be civil word? That word offense in that provision refers to something other than a criminal offense

. But they did intervene. Then they are bound. Yes. Okay. And furthermore, we'll see what the government thinks. And furthermore, I just want to make the point that Congress in the Falls Clean's Act, I've been doing this for a while, that Congress inextricably intertwined the government and in the leaders. You can't tear them apart because the whole point of the Falls Clean's Act is to incentivize people with knowledge, with evidence, with witnesses to come forward, because even if the government knows and Congress understood this, even if the government has knowledge of a fraud, that doesn't mean they can prove the fraud. That doesn't mean that they're going to be able to find out about the fraud by investigating it. What helps them prove the fraud is somebody who has personal knowledge and original source who can testify. Here's the evidence. I saw this happen. And Congress knew that was very important, and that's why they created the original source provision and provided that original sources can pursue cases even if the government doesn't intervene. Because there may be cases where the government doesn't intervene for various reasons, or it's valuable for those cases, for the taxpayers and for the government, for those cases to be pursued. Thank you, Mr. Stone. Thank you very much. Thank you. Sorry for my confusion about the time reservation. Thank you. Why are you confused? Mr. Stewart? Mr. Chief Justice, and may it please the Court. When Congress enacted the 1942 version of the World Times Suspension of Limitations Act, it was acting against the backdrop of this Court's 1921 decision in the United States versus Huttow. And the Court in Huttow was construing the General Federal Criminal Conspiracy Statute, and that statute made it a crime among other things to conspire to commit an offense against the United States. And the question before the Court was whether that criminal statute covered conspiracies to commit civil violations. And the Court held that it did. The Court held that there was no necessity in the statute for the offense, the object of which is the conspiracy, to be a criminal offense, and that the criminal statute could be violated by a conspiracy to commit a civil wrong. And there certainly are great many provisions in Title 18 that use the word offense in which there are other contextual clues within the provision that make clear that only crimes are covered. Is there a provision that uses the word offense, even though it may be civil word? That word offense in that provision refers to something other than a criminal offense. Not other than a criminal offense. As Mr. Stone, every use of the word offense in Title 18 is in reference to a criminal offense. It refers to conduct with criminal, to which criminal penalties attach. As Mr. Stone was explaining, there are provisions in Title 18 that use the word offense to describe conduct that is subject to both criminal and civil sanctions. And those are criminal offenses. The answer to my question was yes. They are still crimes. Yes, yes. But what we would say about 3287 is the word offense is being used something in the same way as a hybrid. There's no dispute that the current version of the WSLA does cover crimes. It tolls the limitations period for criminal prosecutions, but it also applies to civil offenses. The next thing I would ask the court to look at is on page 1a of the government's grief, we've reproduced the original 1942 version of the wartime suspension of limitations at. And the provision begins the running of any existing statute of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by a conspiracy or not, and in any manner, and now indictable under any existing statutes. And if you look even to the rest of that provision, the only clear evidence you would find that this version of the statute was limited to crimes, was the phrase now indictable. Now it's possible that the phrase now indictable did other work as well, but it was the only language in the statute that limited the provision to crimes. And so part of the question by the court, understandably, has been to the effect of, if Congress meant to change this in 1944, why didn't it do something more direct to manifest that intent? And part of our point is, in some sense, removal of now indictable is indirect, but in some sense, removing the only language that previously limited the provision to crimes is the most-way direct way to go about it. If the statute had to be originally. Well, well, well, you can say that it limited it, or you can say that it showed that the word offense in that statute was being used to mean a criminal offense. I don't think it could, I acknowledge that sometimes you can say offense and it means civil. Sometimes you can say that it means criminal. And sometimes you can say it means both. But what that language did in the original statute was to make it clear that the word offense in this statute was being used in a criminal sense. And I don't think that that implication is eliminated by simply taking out the, taking out the now indictable language, which could have been eliminated for a very different reason. And that is to show that it operates prospectively. I guess part of the point I would make is if the initial version of a statute had referred to existing statute of limitations on criminal offenses. And Congress had been excised the word criminal. We would say, I think that would be viewed as very powerful evidence that Congress intended an expanded

. Not other than a criminal offense. As Mr. Stone, every use of the word offense in Title 18 is in reference to a criminal offense. It refers to conduct with criminal, to which criminal penalties attach. As Mr. Stone was explaining, there are provisions in Title 18 that use the word offense to describe conduct that is subject to both criminal and civil sanctions. And those are criminal offenses. The answer to my question was yes. They are still crimes. Yes, yes. But what we would say about 3287 is the word offense is being used something in the same way as a hybrid. There's no dispute that the current version of the WSLA does cover crimes. It tolls the limitations period for criminal prosecutions, but it also applies to civil offenses. The next thing I would ask the court to look at is on page 1a of the government's grief, we've reproduced the original 1942 version of the wartime suspension of limitations at. And the provision begins the running of any existing statute of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by a conspiracy or not, and in any manner, and now indictable under any existing statutes. And if you look even to the rest of that provision, the only clear evidence you would find that this version of the statute was limited to crimes, was the phrase now indictable. Now it's possible that the phrase now indictable did other work as well, but it was the only language in the statute that limited the provision to crimes. And so part of the question by the court, understandably, has been to the effect of, if Congress meant to change this in 1944, why didn't it do something more direct to manifest that intent? And part of our point is, in some sense, removal of now indictable is indirect, but in some sense, removing the only language that previously limited the provision to crimes is the most-way direct way to go about it. If the statute had to be originally. Well, well, well, you can say that it limited it, or you can say that it showed that the word offense in that statute was being used to mean a criminal offense. I don't think it could, I acknowledge that sometimes you can say offense and it means civil. Sometimes you can say that it means criminal. And sometimes you can say it means both. But what that language did in the original statute was to make it clear that the word offense in this statute was being used in a criminal sense. And I don't think that that implication is eliminated by simply taking out the, taking out the now indictable language, which could have been eliminated for a very different reason. And that is to show that it operates prospectively. I guess part of the point I would make is if the initial version of a statute had referred to existing statute of limitations on criminal offenses. And Congress had been excised the word criminal. We would say, I think that would be viewed as very powerful evidence that Congress intended an expanded. But there'd be no other reason for eliminating the word criminal. Whereas there is a very good other reason for eliminating the phrase now indictable. Well, the reason that has been postulated is that now indictable originally served the purpose of making clear that the word is not the right. That the WSLA would not revive expired prosecutions. And that this was no longer necessary in 1944 because the statute was amended to make that point clear separately. But in fact, the 1942 version of a statute said this act shall apply to acts offenses or transactions where the existing statute of limitations is not yet fully run. But it shall not apply to acts that would otherwise be barred. And- Council, is the Korean War covered by the WSLA? I think the general understanding at that time was that only declared wars were covered. And so likely the Korean War would not have been covered. I don't know the correct- Is that your position now that only declared wars are covered? Well, the statute was amended in 2008 and it now provides in the current version of a statute as a page 4a. This is currently 3287. It says when the United States is at war, or Congress has enacted a specific authorization for the use of the armed forces. Was it such an authorization in the Korean War? Not pursue it to- I don't know, I mean at the time. I don't think there was. I'm trying to get at the question of the breadth of your position. As I understand it, you're now saying at war doesn't necessarily have to have a declared war. I think what we would say is under the current version of the- The current wording of the statute implies that at war does require a declaration of war, but Congress has added an additional category when there has been an AUMF pursuant to the war powers resolution. So the current version were effect- Were in effect in 1950 the Korean War would not be covered? Because there wasn't a declared war and my understanding is there wasn't a specific authorization for the use of force. That would be my understanding as well. That Congress seems to have acted to extend the statute beyond the declared wars, but not to anything that could be considered military operations if they have not been authorized in a particular manner. It's just right before your time runs out. What is the government's position on the point raised by Council for a respondent? Namely, if there is a dismissal of on the merits of a civil action, is the government barred from later bringing a different action on the same claim? We would think we would be barred. We think that was Congress's expectation in 1986 and that's the understanding of the statute that we have been operating under. That is our protection under the statute is that when a key tam suit is filed, we have an initial opportunity to decide whether to intervene or not. Even if we initially decide not to intervene, we can move later to intervene for good cause shown. And so if we initially think the regulator can do a capable job, but then we decide later, no, he can't. Our protection against the claim being badly litigated is that we can take over the suit. And if we don't avail ourselves of that protection and the case is decided against us on the merits, then claim preclusion would apply. And I think in Taylor versus Sturge, the court identified a number of categories of cases in which nonparties can be barred in subsequent litigation

. But there'd be no other reason for eliminating the word criminal. Whereas there is a very good other reason for eliminating the phrase now indictable. Well, the reason that has been postulated is that now indictable originally served the purpose of making clear that the word is not the right. That the WSLA would not revive expired prosecutions. And that this was no longer necessary in 1944 because the statute was amended to make that point clear separately. But in fact, the 1942 version of a statute said this act shall apply to acts offenses or transactions where the existing statute of limitations is not yet fully run. But it shall not apply to acts that would otherwise be barred. And- Council, is the Korean War covered by the WSLA? I think the general understanding at that time was that only declared wars were covered. And so likely the Korean War would not have been covered. I don't know the correct- Is that your position now that only declared wars are covered? Well, the statute was amended in 2008 and it now provides in the current version of a statute as a page 4a. This is currently 3287. It says when the United States is at war, or Congress has enacted a specific authorization for the use of the armed forces. Was it such an authorization in the Korean War? Not pursue it to- I don't know, I mean at the time. I don't think there was. I'm trying to get at the question of the breadth of your position. As I understand it, you're now saying at war doesn't necessarily have to have a declared war. I think what we would say is under the current version of the- The current wording of the statute implies that at war does require a declaration of war, but Congress has added an additional category when there has been an AUMF pursuant to the war powers resolution. So the current version were effect- Were in effect in 1950 the Korean War would not be covered? Because there wasn't a declared war and my understanding is there wasn't a specific authorization for the use of force. That would be my understanding as well. That Congress seems to have acted to extend the statute beyond the declared wars, but not to anything that could be considered military operations if they have not been authorized in a particular manner. It's just right before your time runs out. What is the government's position on the point raised by Council for a respondent? Namely, if there is a dismissal of on the merits of a civil action, is the government barred from later bringing a different action on the same claim? We would think we would be barred. We think that was Congress's expectation in 1986 and that's the understanding of the statute that we have been operating under. That is our protection under the statute is that when a key tam suit is filed, we have an initial opportunity to decide whether to intervene or not. Even if we initially decide not to intervene, we can move later to intervene for good cause shown. And so if we initially think the regulator can do a capable job, but then we decide later, no, he can't. Our protection against the claim being badly litigated is that we can take over the suit. And if we don't avail ourselves of that protection and the case is decided against us on the merits, then claim preclusion would apply. And I think in Taylor versus Sturge, the court identified a number of categories of cases in which nonparties can be barred in subsequent litigation. One of them is when a litigant allows his claim to be litigated by a representative. And the court in Stevens described key tam suits as a species of representational standing. And I think the same principle would apply to a suit brought by a second regulator as well. That is an additional category of nonpartie preclusion that the court in Stevens, I mean sorry, the court in Taylor versus Sturge identified was that when one party is barred from litigating himself, he can't re litigate the same claim through a proxy. And if the United States would be barred by the judgment in the first key tam suit from filing its own suit, then to allow a second regulator to go forward on the same claim, would in essence be allowing the United States to re litigate through a proxy. And to us, it makes perfect sense that Congress drafted the first to file bar specifically with reference to pending actions. Because if the case is not, the first case is not dismissed on the merits, dismissed without prejudice. And then Relator 2 files, your position is that suit may be maintained. It would not be barred by the first to file provision. Now, the court may want to look at, I'm curious now, just because of background, would the first suit told statute of limitations as to the second realtor? We believe probably not. That is, I think typically the rule is that if the first suit is ultimately dismissed, then the second suit proceeds as though nothing had happened, but that time wouldn't be told. But the court may look at page 5a of the brief, which reproduces the current version of the public disclosure bar. And it says, this is about halfway down the page, the court shall dismiss an action or claim under this section, unless opposed by the government, but if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a federal criminal civil or administrative hearing in which the government or its agent is a party. So often the effect of the first suit may be to bar second related from suing under the public disclosure bar unless they qualify as original sources. Thank you, Mr. Suhrit. Mr. Elwood, you have reserved four minutes. Mr. Stewart said that the only language in the provision in the War of the Suspension Limitations Act, which limited to crimes, was the phrase, now indietable. And I disagree with that. If you look at the Anitrust Suspension Act that is reproduced in our brief, it said that what Congress you said there was any violation. It's very telling that 47 days after enacting the War of the Suspension Limitations Act, which used offense to apply only to crimes, it said, any violation, which is now indietable or subject to a civil proceeding. So it was the word offense there that was limiting it to crimes, not the word not now indietable. In addition, I want to be perfectly clear about this. And page five of our plibrary of a note three, we go through all of the claimed criminal code provisions which supposedly use the word offense to mean a civil violation and they do not. Every time the word offense appears, it is to describe the crime in the statute, not something else that may say the conduct underlying the offense or something like that. But every time they use the word offense, it is to refer to a crime and nothing else. Mr

. One of them is when a litigant allows his claim to be litigated by a representative. And the court in Stevens described key tam suits as a species of representational standing. And I think the same principle would apply to a suit brought by a second regulator as well. That is an additional category of nonpartie preclusion that the court in Stevens, I mean sorry, the court in Taylor versus Sturge identified was that when one party is barred from litigating himself, he can't re litigate the same claim through a proxy. And if the United States would be barred by the judgment in the first key tam suit from filing its own suit, then to allow a second regulator to go forward on the same claim, would in essence be allowing the United States to re litigate through a proxy. And to us, it makes perfect sense that Congress drafted the first to file bar specifically with reference to pending actions. Because if the case is not, the first case is not dismissed on the merits, dismissed without prejudice. And then Relator 2 files, your position is that suit may be maintained. It would not be barred by the first to file provision. Now, the court may want to look at, I'm curious now, just because of background, would the first suit told statute of limitations as to the second realtor? We believe probably not. That is, I think typically the rule is that if the first suit is ultimately dismissed, then the second suit proceeds as though nothing had happened, but that time wouldn't be told. But the court may look at page 5a of the brief, which reproduces the current version of the public disclosure bar. And it says, this is about halfway down the page, the court shall dismiss an action or claim under this section, unless opposed by the government, but if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a federal criminal civil or administrative hearing in which the government or its agent is a party. So often the effect of the first suit may be to bar second related from suing under the public disclosure bar unless they qualify as original sources. Thank you, Mr. Suhrit. Mr. Elwood, you have reserved four minutes. Mr. Stewart said that the only language in the provision in the War of the Suspension Limitations Act, which limited to crimes, was the phrase, now indietable. And I disagree with that. If you look at the Anitrust Suspension Act that is reproduced in our brief, it said that what Congress you said there was any violation. It's very telling that 47 days after enacting the War of the Suspension Limitations Act, which used offense to apply only to crimes, it said, any violation, which is now indietable or subject to a civil proceeding. So it was the word offense there that was limiting it to crimes, not the word not now indietable. In addition, I want to be perfectly clear about this. And page five of our plibrary of a note three, we go through all of the claimed criminal code provisions which supposedly use the word offense to mean a civil violation and they do not. Every time the word offense appears, it is to describe the crime in the statute, not something else that may say the conduct underlying the offense or something like that. But every time they use the word offense, it is to refer to a crime and nothing else. Mr. Stewart also mentioned this, the Hado case. And so this was decided against the backdrop of Hado. I want to point out that the crime and issue in Hado is the last criminal code provision which they have identified, which used the word offense they say to include a civil violation. And the government there said that that was taken care of. It is now no longer a, no longer applies the civil violations because the Congress amended it 371, the conspiracy statute to say that a minor offense is a misdemeanor. Well, that has exactly the same effect of the statute that I talked about earlier. It was enforced today this provision, the War Times of Spension Act was enacted. It says that offenses are either felonies or misdemeanors. Nobody has said a word about that yet. And as exactly the same provision as the amendment, Mr. Stewart says overworld Hado. Also, I think Hado has to be viewed in light of the case it cited. A five-page opinion, it relied heavily on the 1893 case of petty bone which just said there can be conspiracies to violate the civilian laws. So I think Hado is a conspiracy case and nothing more. Oh, and respect to the, the residue to Cata. I want to point out that at this point still no one has cited a case in which related to is bound by the loss of a later one. Taylor versus Sturgell talks about representative litigation and I think that that maybe works in one direction and that the government can be bound by a later one's loss. But it's hard to say that later one. I mean, at least I would be more than happy to argue this position, but I can expect that there will be some pushback probably including from the government at that time. If I say that related to was the representative of related one when related to was a stranger to related one related to the state of the government, this purpose. But in any event, no one has yet cited to me a case where this has already been determined so it's all litigation risk to my client now. And finally I want to point out one final thing which is that Mr. Stewart said that a undeclared war under the pre amendment war times suspension act did not apply to undeclared wars. The fourth circuit said differently and the government has now confessed error or at least said that the fourth circuit aired in that position. I just wanted to bring that to the court's attention even though it is at most a true shear issue before this court. And if there are no further questions, we'll allow our submission. Thank you, Council. Case is submitted.

We'll hear argument next in case 121497 Kellogg Brown in Root Services versus United States X-Rail Benjamin Carter. Mr. Howard? Mr. Chief Justice, and may it please the Court. By clearing the way for a later to file a fifth identical false claims act to complain against KBR, raising allegations the government had long known from other sources, the court below aired in two respects. First, the plain text and history of the War Times suspension of Limitations Act confirmed that it applies exclusively to crimes. The language of the provision tolls limitations periods for offenses. At the, on the very day that that provision went into effect, a neighboring provision or nearby provision of Title 18 divided offenses into two categories, felonies and misdemeanors, both plainly applying to crimes, a neighboring provision also of Title 18 divided offenses between capital offenses and non-capital offenses, again referring solely to crimes. And it is very telling that in 857 dual column pages of Title 18, neither the government nor the later has been able to identify any provision that uses the word offense to refer to a civil violation. Is it unusual that a criminal statute of limitations would be much longer than a civil statute of limited, which is the effect of your argument? I don't think it is necessarily. I mean, it depends on what exactly Congress is trying to attempt and it reflects some of the differences between how criminal laws prostitute and civil laws prostitute. Because recall that Congress did, it has its separate provision for recognizing that the False Claims Act may be hard to investigate at times, and it provided a discovery mechanism there that doesn't apply to the relators and only applies to the government of three-year discovery period with a 10-year backstop. And some states used to have a no statute for murder and yet had a statute of limitations on wrongful death claims. I think that's the case with respect to State law anyway. But I think it all kind of reflects the kind of differences between criminal law and civil law because the minute a complaint is filed, I mean, most of the investigation, especially for relators, they don't have any legal status to conduct investigations. They can't bring subpoenas. So usually it's based on their own knowledge. They file a complaint. They come into court, and then they have the federal rules. Also at that point, the government gets 60-day period to investigate, which is on average 13 months, according to the Chamber of Commerce brief that cite the letter from the DOJ to the Senate, and in our own experience, and in this case, is usually a couple of years. And during that time, they have, you know, all the time they went to investigate. So I think it just reflects the fact that criminal litigation and civil litigation are conducted differently. But clearly, Congress already contemplated how to handle delays under the False Claims Act, and they enacted a civil provision for that under the FCA. And so I don't think the court needs to import this general provision, which applies only to offenses, to address the False Claims Act situation that Congress has already specifically addressed. Now all parties agree that the War Times suspension act began its life as a criminal provision, and exclusively and explicitly criminal provision. The only question is whether Congress changed it along the way to make it civil. The thing that the relators point to is the deletion in 1944 of the words now indietable. But that went unremarked in Congress, and you would expect somebody to say something if they were fundamentally transforming the nature of the statute. And that's not what people understood those words now indietable to mean at that time. If you look at the other things that were around it at the time, like, for example, 47 days after the First War Times suspension act was enacted, Congress for crimes, and all agree it was for crimes, they also enacted an anti-trust suspension act, which didn't use the word offenses, it used the word violations. And it said now indietable or subject to civil proceedings, which shows that what was going on in that clause was about the now. It was to tell you that it applies to things that came before this. Are you adopting the argument of the New England Foundation, the Amika brief? That is, yes, we made that argument, I think, in our brief as well, but I think that they did a more full-throated version, and also NDA did a more full-throated version of that. But yes, I think that it was the purpose of that was to say it was applied to things before the date of enactment and hadn't yet been barred. And that was one of the other things. I mean, if you look at what this Court said about that language of Maclvan, it said that that was to say that the limit-sadural limitations hadn't run, that that's what that now indietable language did. This Court's Maclvan, I think. So, what I take the point, and that seems like a fair understanding of why that term came out, but it wasn't the only change that they made at that point, and taking that to term out may have had more than one reason, of course. So, two other changes they make are they put in the word any. So, the old statute just says offense, and now it's any offense, which suggests breadth and expansiveness. And the other thing, of course, is that they do all of this in connection with this contract settlement act, which presumably refers both to civil and to criminal matters. And it follows right after this contract settlement act, and suggests that it's following on it. So, you know, put all those three things together, the taking out of the indictment language, the putting in the word any, and the passage in conjunction with the contract settlement act, I think that that would be an argument on the other. I'll try to address each of those. I have a pretty terrible memory, so just bring me back to it if I forget. I think now indictable is just to make it forward-facing, because they were now not worrying about just those cases, they wanted to make it forward-looking for the rest of the war. Which was expected any offenses, it wasn't just any offense of simplicity, it was any offenses against the laws of the United States. And Congress meant that that was so unequivocally applied to criminal law, that is the exact phrase they used in acting the statute giving district courts exclusive jurisdiction over crimes. They didn't say crimes, they said offenses against the laws of the United States in 1948. And what was the third term that I told you was a terrible memory? I mean, the contract settlement. Oh, and the contract settlement itself. I mean, they say it was, you know, predominantly a civil statute, and they did create a big administrative state, or an administrative apparatus. But the provisions that they, the causes of action they created are actually the primary ones that created were not actually subject to a statute of limitation, so it would have been curious to try to told them. For example, the thing, in this court said in Kohler that 26B1 of the surplus property act wasn't subject to any statute of limitations. There was an analogous provision in that 19C, which is the one that the later on the government both pick out and say, aha, look at this, the new civil cause of action that we're probably trying to told that. But as the, so Mr. General said in footnote three of their Kohler briefed this court, the remedy in that is substantially like the remedy in 26B1, with a suggestion being that it was not itself subject to a statute of limitations, which is what the district courts that have addressed 19C have said, that it wasn't subject to a statute of limitations. As the, as she's brief points out, the court of claims applied a statute of limitations to both 26B1, which is court overruled, and to 19C. But I think that the district courts had a better, had the better of that argument. But the overall impression is, it was still at the end of the day, it was still applying to offenses, that is crimes. And that goes for the government, as suppose, government, not a later, brings the false claims against a contract. The government wouldn't get the, the, under your, the government doesn't get the suspension. That's right, it doesn't get the wartime suspension. It would, however, get the specific three-year tolling provision or three-year discovery period under the False Claims Act itself. And a couple other notes that I think are worth while we've already said a lot about the fact that this listed general said in 1959 at a time when it had been litigating these cases continuously that it was subject to criminal laws only. But I think it's also significant that the officer created by the Contract Settlement Act, or the office of contract settlements, said in 1947 that the US tolling provision only applied to crimes. And I think that's significant because I mean it was within, I'm not saying it's a chevron difference saying, but it was within their duty as the government points out they had to investigate and report it to the government to do what they will with it. But the end result of it was that you have to know whether that subject to tolling or not when you're deciding how to prioritize what you're going to be investigating and reporting. I think one final thing and then I'll move on to the other element or the other error that the court made was that neighboring provisions in Title 18 simply wouldn't make sense if a fence also applied to violations of the civil laws. Like for example, 3282A, it says, no person may be tried for an offense unless indicted within five years when the offense arose. And obviously you can be tried for a civil crime without being indicted within five years. And under coward versus nickels, that is something the court takes into consideration in trying to determine the meaning of something. Now, even though it would be mostly a complete remedy if we won on the wartime suspension grounds, if the court also gets to the first-of-file issue, it could save the- And we in any way agree with you- Yes, I'm sure you agree with me on the first question. Should we get to the second and how would we if we believe if you were right on the first? Well, you should because among other things that will take care of on remand, the court won't have to address the equitable-tolling argument that we think is waived and also meritless. And also, of course, there is the same issue already behind this in the Purdue pharma case and in the Shay case as well. And so I think the court may as well. It would be the most efficient thing to do. But I think it would be a complete remedy on us if we won on the wartime suspension grounds. Now, the second error that the court below made was to- Well, if Congress had meant the first-of-file bar to be a one-case at a time rule, allowing an unending or infinite series of related lawsuits, it would have said so in plain terms. The only problem you have with this argument and it has substantial force to it, but you give no significance to the word pending. You almost write that out of the statute. I disagree just this, Kennedy, because I mean, you have to have some sort of word there, because otherwise it would be kind of confusing between the two actions, in form or. There are a lot of ways- It's very strange to work the pick, or first. But the thing is, well, let me begin by saying that under- Or said action or that act. Yeah, but I think under each of the parties here, it could have been written better to follow up, you know, to embody the reading that we want to give it. But I think that R is the one that makes the most sense, because if you just look at the provision from the moment when the bar arises, it makes perfect sense. It is the pending action at that point. And- Well, I do want to- Besides the problem that you're talking about, you're not giving pending any meaning, you're also destroying the force of an original source. I mean, the public disclosure bar doesn't apply to an original source. And you're sort of blocking original sources from bringing suits when a prior case involved a dismissal for a technicality, or dismissal because this was in the public domain. But that's not true for an original source. But I think to begin with, there's nothing in the public disclosure bar that suggests that it was supposed to prevent the original source from being subject to all of the other bars that are out there still, like the, you know, like the government knowledge bar that still exists in a tiny little corner, or the first to file bar. And the original source makes a lot of sense for public disclosure. But it doesn't make any sense for first to file for this reason. When it's public disclosure, when it's something that's said in the committee report, you have no idea whether or not it got into the ear of the person at the Justice Department who needs to know about it, or something to be done about it. And first to file, however, they not only, they have to file an action and district court, and they have to give all the material evidence they have to the Attorney General of the United States, who is under a statutory obligation to investigate it, and who has to decide whether to intervene or not. Now, that is something that guarantees that, you know, by hook or by hook, somebody at Justice Department with responsibility for these things knows it and has the information that they need to take action on this. And after you've done that once, it doesn't make a lot of sense for you to be able to just keep coming into court and filing a lawsuit telling the government, you know that stuff that you already know? Let me tell it to you again. I want to follow you on that. Well, reality is you don't need to quit town unless the government doesn't want to waste resources on something, but that doesn't mean that they didn't find that there might be something there. But once the government has, once the original first-of-file bar, once the original related reports this information to the government, if the other actions that are to be barred are related, the government has the information it needs to investigate all of them. But what does it it may not want to prosecute? It may not. Well, it may decide that there is. You have to assume that what the intent is is not to force the government to prosecute, but to get recovery for the government. I think the point of the first-of-file bar is to do two things, and this is kind of widely accepted, that first it is to give incentives for people to come forward. And I think that basically requiring it to stop at one is a much more powerful incentive to come forward promptly with the information you have. And secondly, it is to make sure that the government doesn't dilute its recoveries by paying subsequent related information the government already has. And if the first-relator gave you enough information to investigate the whole breadth of the crime, you will have to pay that initial related, depending on whether, I guess, if you intervene by presumption, it would be 15 to 25%. But if that person can file, and the next person can file, and the next person can file the longings of breaking the fact- You can get a general collateral of stop-a-works in this area. I actually don't know, but let's assume that the adversary won a claim against you. Could someone else come in and you have now won for the government, essentially? Could anyone else file a suit? Or would they be stopped? Because- Well, at that point, it would be already, I guess it would depend on the scope and how related- you're talking about KBR loss in this hypothetical correct? Exactly. Because they're the mutuality. I mean, it gives more, you know, because there'd already been a finding that KBR had done certain things that might apply to other relators. But I think the thing that kind of matters more is what about the non-mutuality in the other direction? Because if KBR beats relator number one, and they say there was no problem here, what about relator two through X? The relator is treated as the government for occlusion purposes. Well, that was at least at least so, Judge. I don't think that it's clear that that's a case. Although there is good authority in this in the Court of Appeals for that position. I disagree, Justice Ginsburg. We've been looking for it, and we have not found anything that clearly says relator two is bound by relator one, having lost an action. There is the language, which I think is an Eisenstein to say that the United States itself is barred. But I think that any defendant is going to have to establish that law and knew if it's going to apply to further relators down the road. But is it your position? A suit number one is filed. It's dismissed within weeks without prejudice. No other relator can file. It depends on what the basis of the dismissal was, because if it was dismissed on nine-beat grounds routinely, they can amend. And it's not dismissing the whole action of just dismissing that complaint, and they can come right back in with an amended complaint. And that is the same action. That's what somebody asked that come in. So you have somebody who's the first driver and comes in with a swapping complaint, and it's not as stated with sufficient specificity dismissed. And that person goes away. Do you say nobody else can ever? No, I think it's the protection there comes from the word related. Because courts of appeals apply a same material fact test. Did you come in with a sloppy mass of a complaint? It doesn't elect you just says, hey, VR is bad. It's a perfect complaint, but he sued in the wrong court. There was no personal jurisdiction. Well, dismissed without prejudice. I mean, if it's in the wrong jurisdiction, you can transfer it. I mean, that's a very hard thing to say. But who did the Nathan White? If that is possible. It's dismissed without prejudice, but it's a beautifully drawn complaint. Well, I'm going to resist for a little while before I get to the meat of the issue, just to say that it's not going to happen. Because personal jurisdiction has Nathan White service of process. And so it's very hard to invoke a particular issue. Is dismissed for failure to prosecute? Well, if it's a non-barrett's ground, and so nobody else can do that. If it's dismissed for failure to prosecute, well, first of all, I want me to resist the hypothetical a little bit more. If it's under our rule, that's an incredibly valuable lawsuit. Because there are no more Mulligans. And so there will be somebody who comes in there and is willing to underwrite it. A new lawyer is who will be willing to take the case. But if it is, I think that we would say it has been barred. If somebody came forward and provided all material information, then everything that is related to that would be barred. I'd like to get back to Justice Ginsburg's hypothetical because it's an important one. And then if somebody files, the realtor says, oh, well, somebody files a terrible complaint, it's going to bar all the good ones. And I don't think that's the case because they're going to compare under that test, the same material facts test, you compare. And if this one just says KBR is bad, they commit a lot of fraud. And this one says that these three camps, they were requiring people to build 12 hours a day, 84 hours a week regardless of how much they worked. Those aren't the same material facts. And you get the protection that way. I thought the first file rule was made to protect the first file in that, well, one aspect of it is the first file doesn't have to worry about a race to judgment, somebody else files. Second, I think it's the judgment first. So I thought that that was one of the chief aims was to protect the first file, and also to protect that file is recovery. So it doesn't have to split up the liberty term plaintiff. The first race to judgment is not anything that I have found in the courts of appeals. I've only found it in the government's brief. I think that the court says that the insent, they wanted to create the first file ball is meant to create a race to the courthouse, not a race to judgment. And what are the first four hours is a race to the courthouse? Yes. Yes, it's meant to create a race to the courthouse. And there's less of an incentive to race to the courthouse under the Relator's rule because even if you aren't the first to file, you can still bring a claim. You just got to wait for a break in the traffic to jump in. And I mean, I'm under that. If you are the first to file, you don't even get a better settlement because when, you know, most of these cases are settled, they aren't let it get to judgment. And a defendant is not going to give you, you know, everything you're asking for. If they know that they're going to have to settle this case again and again and again. And in fact, the disparage is subtlumous because you would be a fool to settle it right away because it just means more people are going to be able to sue you. The Relator's rule is as many lawsuits as you can fit into six years or ten years or an infinite period of time because, you know, there's nothing particular to stop them. Whereas under our rule, you have much more of an incentive to settle and settle for the full amount because by settling with that first relator, you are by the way. And you're not buying peace with respect to all related lawsuits. Do we know in this case there were three suits. I think it was the first, do you know why those suits dropped out? The first one was just to smist the lawyers dropped out and they couldn't, or they didn't find other lawyers. The first card. The first Carter suit. I know I'm sorry, the first Thorpe Lawson, the first a related law suits. It was just dropped for failure to prosecute when lawyers, new lawyers didn't take step into table. You said that terms didn't have right. That they made the full disclosure, the government investigated that case and they knew the 12-hour, day, 84-hour a week claim and they were able to investigate it and if they wanted to bring it, they could have brought it and recovered the whole thing and only paid the Thorpe for later. And I don't know why the other ones dropped out. But they were voluntarily dismissed, I believe, all of them. And as I said, I think this is the more natural, right me? Were any of them filed by original sources? I think all of them were original sources. There were all people who would have qualified as original sources under the statute. And as I say, I think that this is the more reasonable reading of it. Because if you look at this from the point of view of when the bar arises, when it is the pending action, it does everything, no word of surplusage, everything fits. But I have yet to see a one case at a time rule that works the way that this statute does, that uses just an adjective, which, I mean, if you look at it, it's an adjective that is only describing what is a related case. And usually it's not a pending action later. I mean, when that action has been dismissed or been completed, you say that a later action is prohibited, even though there is no pending action, right? But that's, that's because I think that if you, as I say, if you look at this from the point of view of when the action is filed, it makes complete sense and it is a pending action. And there's a reason for doing that. If you look at pages 8, 8, 9, 8, this is the mirror image. The language used in B5 is the mirror image of the language used to create the cause of action in B1. It says in B1, a person may bring a civil action for a violation of Section 3729. And then you find out what happens when they do that and the bar arises. Five, when a person brings an action under this subsection for that violation of 3729, no person other than the government may bring a related action. So it's a parallelism between a person may bring and no person may bring, which suggests that you look at it then going forward. And looking forward indefinitely, just as B1, you look forward for six years or 10 years, or if there's no statute of limitations forever. And by the same token, I think five is a looking forward provision that the bar arises. And that's it, no person may bring. And when you contrast that to saying that this is a temporal limitation, I defy you to find another provision that uses just the word pending with no verb, no nothing to give it some sort of effect like that. We saw a couple of things you're getting into that again. I mean, to me, it makes perfect sense to apply it to us to the pending action. The action goes away. Number two person, that means there isn't going to be the problem that Justice Ginsburg suggested. So we don't have that problem. And now we have a new person who can bring a suit if and only if. Is the original source. Well, is the original source? Let him recover. Why not? And your answer to that is, well, he didn't tell the government all the stuff the first guy did. Well, it's a y'all, but that's not the only purpose of the statute. It's a sweet interaction. It has other purposes. It's to reward the person who, in fact, did discover this thing and made every effort to bring it to public attention. But there's nothing in the first file bar that says anything about an original source. So original source is a car about for the public disclosure bar. I know, but he can't, but other things prevent him from bringing it unless he's in the original source. Am I not right? I mean, it's all been disclosed, you know, everything's been disclosed. Well, it may or may not have been because it may or may not have been because he's taken a mine run. Right. I don't want to interrupt your reserving your. Okay. I would like to reserve the remainder of my time for a bottle, please. Thank you, counsel. Mr. Stone. Mr. Chief Justice, it may please the Court. This civil FCA war fraud case is told under the pre-language of the WSLA because it is an offense involving fraud against the United States under subsection one and is also an offense committed in connection with the payment or performance of a war contract under subsection three. If we look at the text of the law, which applies here, which is that our appendix at page one, there is nothing in that text, which limits, which limits offenses to criminal offenses, not a single word in that text. That's based in the criminal code. That's based in title. That's true. That's true, Justice Ginsburg. But as the government has identified, I believe it's in note three of their brief, there are at least seven civil offenses in the criminal code, including Rico, civil Rico. And in fact, I would direct the Court to section 1034, which says specifically the Attorney General may bring a civil action in the appropriate United States District Court against any person who engages in conduct constituting an offense under section 1033, upon proof of such conduct by proponents of the evidence. That is a civil offense. That is not a criminal offense. And I believe if you look, if the Justice's, if you look, are there any civil offense in title 18? Yes, I just listed one. That's in 18. That's title 18, section 1034. We've- That about fraud. That's about fraud, yes. And what is the word offense? What does the word offense mean in that provision? The word offense is this court. And that provision, what does the word- The word offense means a transgression of law which may be- It means a criminal offense, right? I disagree, Your Honor. I believe- It would make sense. In title 18, unless the offense they're referring to is one of the criminal offenses of title 18. I don't agree, Justice Scalia, because- Great. The provision again, would you? Certainly. The Attorney General may bring a civil action in the appropriate United States District of court against any person who engages in conduct, constituting an offense under Section 1033 and upon proof of such conduct by a preponderance of the evidence. That is very civil, that is. The criminal provisions, right. Ten-Thirty-three is the way a number of the provisions in the criminal code are written. The offenses were the conduct which is punishable or in subset- I think the point- Subsection people are trying to make it, perhaps, is that- The provision you read provides for a civil action by the Attorney General against a person who has committed an offense. What offense? An offense elsewhere defined in 18. Is that offense defined elsewhere? Criminal or civil? It is criminal. That's the point, I think. And I disagree, Justice Scalia. Or I know you disagree, but let's turn to the other offenses. If we read the language carefully, which I have not- I've got the language of that. If we read the language of a number of the statutes, a number of the statutes in Title 18, they have punishments that are criminal. Everything in Title 18 has punishments that are criminal. There are a number of statutes within Title 18 that also have civil remedies or create civil private rights of action. Nobody believes by using the term offense, the Congress intended to turn those into criminal statutes. That's- I agree with the word offense appears, and it provides for civil action. What I wonder is when you turn to the particular provisions that do that and look at the word offense, is that word offense in those civil remedy provisions, referring to a civil or criminal behavior. It is referring to- To civil, you say. So that's three. Conduct, which can constitute a crime, which is punishable by criminal punishment, but is also punishable by civil remedies. And the offense refers to the civil behavior. Yes, because you're saying- Okay, but read me the example because I must have missed it. Because it says it must be proved by a preponderance of the evidence, which means it's not proved by, you know, beyond a reasonable doubt, so it can't be a crime. It has to be a civil offense. And that- And that- That a language appears in a number of places in Title 18, but it can- May I- Mr. So don't take this from more than it's worth, because I think there are plenty of arguments against you, but I'm not sure I understand this one. I mean, it seems to me if your view is it applies to both criminal and civil offenses- Right. Well, Congress had to put the thing someplace. Exactly. It could have put it in the criminal code or it could have put it with all the other civil privileges- And in fact- Either way, there'd be kind of a mismatch. And presumably, the started out as criminal and it refers largely to criminal. And so that's where it goes. Right. And there's no dispute that there was a limitation in 1921 and in 1942 on the statute because it's a now indictable, to now indictable so that it referred to criminal. Well, they took that limitation out as I believe one of the justices made the point earlier. Not only did they take out that limitation, so there's no limitation on the word offense. They added the word any, which this Court has held in Gonzales should be read broadly any offense. And this Court has said both in law, this Court said that an offense is an infraction of the law which may be punishable either civilly or criminally. And again, this Court said in National Gypsum that Congress knows the difference between the elements of a criminal offense and a civil offense. So obviously- What is your answer to that? Can be civil. It is a texturally permissible reading of this text that offense can be civil. What is your answer to the argument that this would be a big change if it previously applied only to crimes and then according to you, it was changed so that it applied to civil claims as well. That would be a big change. What is your response to the argument that we might find a little bit of evidence here or there that that's what was intended. But Mr. L. Wood says there's nothing. There's much evidence, Justice Sileo. First of all, this was historically you have to look at when this statute was being passed. And in 1942, they were concerned about, they were in the middle of the war that was consuming the entire nation. In 1944, they were concerned with wrapping up that war. They were passing contract settlement act, primarily a civil act. This was passed. This amendment was passed as part of the contract settlements act. They were passing the surplus property act. How are we going to deal with all this property? They created civil offenses for surplus property. They did say this same Congress, the 1944 Congress said in a report that this will allow, because the bulk of the offenses under this act will not be cognizable and investigated until after the war, this will allow for that, for litigation, of course. So they use the term litigation, again suggesting that's not a term you normally use when you're talking about crimes. They use that term. So they clearly- That's your best evidence that there was a reference to litigation. That's the best reference because there's not, there's virtually more- Where did that appear? That appeared in a Senate report when they passed the surplus property act. But I think you need to look at the historical reference of when this was occurring. This was occurring when they were creating all these civil remedies. It made sense for them to expand. They added the word any to offense. They had no need to add the word any to offense. They did that because they wanted to make it clear that it could have covered any offense, including civil or criminal offenses. And they took out, and I agree there could be more than one reason why you take this language out. But they took out the now indictable language, which was the only limitation that could be read in the text that would limit it to crimes, and there's nothing in the text as it now occurs. But also point out that the 2008 Congress, when they strengthened this, obviously believing that wartime suspension and slumitation action continue to be enforced, mention twice litigation. They mentioned the fact that this was in order to allow courts, prosecutors, and litigants to know when the statute was on. What Congress was that? The 2008 Congress. And that's where does that appear? That appears in a Senate report as well. Two Senate committees, or just one Senate committee? One Senate committee was cited in the Senate. And that's the Congress. So you did in our red book, yes, Your Honor. I would point out, though, that the meaning of offense in 1921 and the meaning of offense in 1942 was a transgression of laws this Court said in more VLNO. It's a transgression of law which could be punished, civilly, it could be punished criminally. We need more context. We need something in the statute to limit it. There's nothing in the statute. And it makes sense that Congress wouldn't have wanted to limit it because they would have wanted to give the government the option of pursuing a criminal. I mean, or accept when you're dealing with an old statute that used to be clearly criminal. And it seems to me at that point, the burden, when that statute is extended, the burden is on you to show that it's been changed from the criminal to the civil. Well, Judge, I would point out that. You include the civil. And, you know, that's a different burden from what you expect. Justice Scalia, I would point out that nine of ten courts that considered this in the aftermath of the 1944 amendment held that it did apply civilly. And five of those were false claim, civil false claims act cases. And those courts in that judicial precedent was in place for 40 years. Congress never changed that language, never went back. It could easily have written the word criminal in in 1944. They chose not to do that. And they could have written it in the Justice Court. They just forced four district courts, is that it? They were, they were district courts. Yeah, did Congress know about those? Congress is presumed to know about them. Oh. But I will also point out that the people and the courts that were operating at the time that this amendment was made understood it to change the law. Nine of the ten courts understood it to change the law. So it goes to what people believed at the time, the meaning of that word was. Because it changed the law to do what? And two to allow civ offenses, awkward, prospectively, not just to crimes that had already occurred. Right. That's one change that everybody agrees. And it changed the law to include any offense. We would say that was related to the war, which would include our civil FCA war, for our defense in this case. It's specifically consistent with Congress's intent that a fraud, such as occurred in this case, that the government would be able to pursue it. It's a fraud on the troops in wartime. It's exactly why the statute was passed. It's exactly why the False Clean Act was passed. So, in the case, the government can pursue it in a criminal case, the question is whether. Right. And the question is whether it's appropriate and based on the language, Justice Scalia, based on the language of this statute, which nowhere in it contains a limitation, the only limitation was taken out in 1944, and instead they added the word any, and they added two subsections that could be read in the original. The urge is the word offense. That's a limitation that is urged, which is normally used to denote a crime. Well, the truth. I don't think that changes. The terms. If you put the word any in front of it. But your honor and more of your CZLNOI, the Court said that offense means a transgression of law that could be punished either criminally or civilly. And presumably Congress was aware of this Court's holding in more, was presumed to be, an endless court again on a number of occasions, including in National Gypsen, referred to Congress as being familiar with the difference between criminal and civil offenses. There would be no need for the term civil offense, or the term criminal offense, offense meant crime. Offence doesn't mean crime. There would be no need for the word criminal offense. If I'm not mistaken, I'm not mistaken. By the way, the word criminal offense occurs as a number of his phone. Justice Ginsburg, sorry. Everyone agrees that from 1921 on, it was understood that this was a criminal statute. And I think the point has been made before. It kind of was really within the changing to fold it all onto the existence of two words which can be explained on other grounds. It's a bit much. Wooden Tongue, as I said, now we're going to make it, we want it to be civil, so we're going to make it clear to the civil. Justice Ginsburg, I would point out a couple of things about that. First of all, the surplusage language which petitioner points to, which they claim was the reason that this was taken out was in the statute since 1921. So there have no historical reason why all of a sudden in 1944 it was taken out. It was there that was the reason in time. The statute acted retrospectively for the first part of its history, and then it took it out when it was going to operate prospectively. But Judge Ginsburg, that's not correct because the language at the end of the wartime suspension of limitations acts, holds that, provides that the statute does apply retrospectively. It applies to any statute of limitation which has not yet run. And that's been in the statute since 1942. I would also point out that the 1921 statute had nothing to do with the war. There's not much we can lean from the 1921 statute. All that it did was to increase the statute of limitations from three years to six years for fraud. It didn't mention the war at all. And in 1942, all that the statute did was extend until 1945 the provision that was in 1942. It also did not refer to the war. The first statute that actually referred to the war was the 1944 statute. So yes, it's true that some language was used. But I believe, you know, as we set forth in our brief, that a fence can mean criminal or civil. It's a textually permissible interpretation. There's nothing that limits it in the current law. It's consistent with Congress intended when they passed the statute. And I urge the Court to seriously consider that because it would be inappropriate for the government to be limited to pursuing cases only criminally against defendants who are war profiteers and not have that civil remedy. If I may move on to the False Claims Act. Well, you can either reserve time or move on. It's up to you. I'd like to move on, if I may. Go ahead. The False Claims Act, as Justice Scalia pointed out, pending in the False Claims Act, it's a word that was chosen in the first-of-file provision. It's a word that Congress chose to use. It makes sense because if you look at the statutory scheme in which that provision is found, it's talking about, wow, that action is pending, what the government can do. It talks about the previous provisions, talk about the government making a decision about intervening. The next provision talks about the government can dismiss that case, which protects all the concerns that Mr. L. Wood has pointed out because the government has the ability to dismiss a case any time that it wants to. If it isn't in the interest of the government for that case to be there. So it also uses the term intervention. You cannot intervene in a non-pending case. Congress specifically chose to put these in the same sentence to say, no person shall intervene or file a related case, while the case is pending. So for that reason, I believe pending is clearly the most reasonable interpretation. But it's also the most consistent with the statutory scheme, which, as Justice Kagan pointed out, provides that original sources can go forward, even if the government has knowledge of a fraud, and even if the government is investigating that fraud, is this court found in Graham County. What happens if you have a first file, when the claim is successful, even gets a judgment or gets a settlement, and the case is over. It's not all the pending. We would argue, and I believe the government will agree, that claim preclusion raised you to Cotta, all the typical doctrines would apply. I would point the Court to Stevens where the Court held that the Relator was an Ascene of the government, and if an Ascene of the government brings a case and either settles it, or it's decided on the merits, that would bar any future case. And I believe the government will agree with that. But to allow the defendants to say that a case that is brought that may never be pursued like in this case, the court, where they alleged, everywhere in the world, there was fraudulent billing. This person had never been to the base where the fraudulent billing was occurring in our case, had no personal knowledge of it, no Relator, other Relator, was found to be an original source. They didn't reach that issue. I'm not sure the government will agree with that as you confidently predict, but I guess we'll ask the government. Well, but I think you're saying that if somebody brings a suit and loses the government is thereby precluded from joining a later suit, right? The government is. I am saying that if somebody brings a lawsuit and on the merits, there's a decision on the merits, the government is chosen not to intervene in that case. Right. They've had the opportunity to intervene at any point. But they did intervene. Then they are bound. Yes. Okay. And furthermore, we'll see what the government thinks. And furthermore, I just want to make the point that Congress in the Falls Clean's Act, I've been doing this for a while, that Congress inextricably intertwined the government and in the leaders. You can't tear them apart because the whole point of the Falls Clean's Act is to incentivize people with knowledge, with evidence, with witnesses to come forward, because even if the government knows and Congress understood this, even if the government has knowledge of a fraud, that doesn't mean they can prove the fraud. That doesn't mean that they're going to be able to find out about the fraud by investigating it. What helps them prove the fraud is somebody who has personal knowledge and original source who can testify. Here's the evidence. I saw this happen. And Congress knew that was very important, and that's why they created the original source provision and provided that original sources can pursue cases even if the government doesn't intervene. Because there may be cases where the government doesn't intervene for various reasons, or it's valuable for those cases, for the taxpayers and for the government, for those cases to be pursued. Thank you, Mr. Stone. Thank you very much. Thank you. Sorry for my confusion about the time reservation. Thank you. Why are you confused? Mr. Stewart? Mr. Chief Justice, and may it please the Court. When Congress enacted the 1942 version of the World Times Suspension of Limitations Act, it was acting against the backdrop of this Court's 1921 decision in the United States versus Huttow. And the Court in Huttow was construing the General Federal Criminal Conspiracy Statute, and that statute made it a crime among other things to conspire to commit an offense against the United States. And the question before the Court was whether that criminal statute covered conspiracies to commit civil violations. And the Court held that it did. The Court held that there was no necessity in the statute for the offense, the object of which is the conspiracy, to be a criminal offense, and that the criminal statute could be violated by a conspiracy to commit a civil wrong. And there certainly are great many provisions in Title 18 that use the word offense in which there are other contextual clues within the provision that make clear that only crimes are covered. Is there a provision that uses the word offense, even though it may be civil word? That word offense in that provision refers to something other than a criminal offense. Not other than a criminal offense. As Mr. Stone, every use of the word offense in Title 18 is in reference to a criminal offense. It refers to conduct with criminal, to which criminal penalties attach. As Mr. Stone was explaining, there are provisions in Title 18 that use the word offense to describe conduct that is subject to both criminal and civil sanctions. And those are criminal offenses. The answer to my question was yes. They are still crimes. Yes, yes. But what we would say about 3287 is the word offense is being used something in the same way as a hybrid. There's no dispute that the current version of the WSLA does cover crimes. It tolls the limitations period for criminal prosecutions, but it also applies to civil offenses. The next thing I would ask the court to look at is on page 1a of the government's grief, we've reproduced the original 1942 version of the wartime suspension of limitations at. And the provision begins the running of any existing statute of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by a conspiracy or not, and in any manner, and now indictable under any existing statutes. And if you look even to the rest of that provision, the only clear evidence you would find that this version of the statute was limited to crimes, was the phrase now indictable. Now it's possible that the phrase now indictable did other work as well, but it was the only language in the statute that limited the provision to crimes. And so part of the question by the court, understandably, has been to the effect of, if Congress meant to change this in 1944, why didn't it do something more direct to manifest that intent? And part of our point is, in some sense, removal of now indictable is indirect, but in some sense, removing the only language that previously limited the provision to crimes is the most-way direct way to go about it. If the statute had to be originally. Well, well, well, you can say that it limited it, or you can say that it showed that the word offense in that statute was being used to mean a criminal offense. I don't think it could, I acknowledge that sometimes you can say offense and it means civil. Sometimes you can say that it means criminal. And sometimes you can say it means both. But what that language did in the original statute was to make it clear that the word offense in this statute was being used in a criminal sense. And I don't think that that implication is eliminated by simply taking out the, taking out the now indictable language, which could have been eliminated for a very different reason. And that is to show that it operates prospectively. I guess part of the point I would make is if the initial version of a statute had referred to existing statute of limitations on criminal offenses. And Congress had been excised the word criminal. We would say, I think that would be viewed as very powerful evidence that Congress intended an expanded. But there'd be no other reason for eliminating the word criminal. Whereas there is a very good other reason for eliminating the phrase now indictable. Well, the reason that has been postulated is that now indictable originally served the purpose of making clear that the word is not the right. That the WSLA would not revive expired prosecutions. And that this was no longer necessary in 1944 because the statute was amended to make that point clear separately. But in fact, the 1942 version of a statute said this act shall apply to acts offenses or transactions where the existing statute of limitations is not yet fully run. But it shall not apply to acts that would otherwise be barred. And- Council, is the Korean War covered by the WSLA? I think the general understanding at that time was that only declared wars were covered. And so likely the Korean War would not have been covered. I don't know the correct- Is that your position now that only declared wars are covered? Well, the statute was amended in 2008 and it now provides in the current version of a statute as a page 4a. This is currently 3287. It says when the United States is at war, or Congress has enacted a specific authorization for the use of the armed forces. Was it such an authorization in the Korean War? Not pursue it to- I don't know, I mean at the time. I don't think there was. I'm trying to get at the question of the breadth of your position. As I understand it, you're now saying at war doesn't necessarily have to have a declared war. I think what we would say is under the current version of the- The current wording of the statute implies that at war does require a declaration of war, but Congress has added an additional category when there has been an AUMF pursuant to the war powers resolution. So the current version were effect- Were in effect in 1950 the Korean War would not be covered? Because there wasn't a declared war and my understanding is there wasn't a specific authorization for the use of force. That would be my understanding as well. That Congress seems to have acted to extend the statute beyond the declared wars, but not to anything that could be considered military operations if they have not been authorized in a particular manner. It's just right before your time runs out. What is the government's position on the point raised by Council for a respondent? Namely, if there is a dismissal of on the merits of a civil action, is the government barred from later bringing a different action on the same claim? We would think we would be barred. We think that was Congress's expectation in 1986 and that's the understanding of the statute that we have been operating under. That is our protection under the statute is that when a key tam suit is filed, we have an initial opportunity to decide whether to intervene or not. Even if we initially decide not to intervene, we can move later to intervene for good cause shown. And so if we initially think the regulator can do a capable job, but then we decide later, no, he can't. Our protection against the claim being badly litigated is that we can take over the suit. And if we don't avail ourselves of that protection and the case is decided against us on the merits, then claim preclusion would apply. And I think in Taylor versus Sturge, the court identified a number of categories of cases in which nonparties can be barred in subsequent litigation. One of them is when a litigant allows his claim to be litigated by a representative. And the court in Stevens described key tam suits as a species of representational standing. And I think the same principle would apply to a suit brought by a second regulator as well. That is an additional category of nonpartie preclusion that the court in Stevens, I mean sorry, the court in Taylor versus Sturge identified was that when one party is barred from litigating himself, he can't re litigate the same claim through a proxy. And if the United States would be barred by the judgment in the first key tam suit from filing its own suit, then to allow a second regulator to go forward on the same claim, would in essence be allowing the United States to re litigate through a proxy. And to us, it makes perfect sense that Congress drafted the first to file bar specifically with reference to pending actions. Because if the case is not, the first case is not dismissed on the merits, dismissed without prejudice. And then Relator 2 files, your position is that suit may be maintained. It would not be barred by the first to file provision. Now, the court may want to look at, I'm curious now, just because of background, would the first suit told statute of limitations as to the second realtor? We believe probably not. That is, I think typically the rule is that if the first suit is ultimately dismissed, then the second suit proceeds as though nothing had happened, but that time wouldn't be told. But the court may look at page 5a of the brief, which reproduces the current version of the public disclosure bar. And it says, this is about halfway down the page, the court shall dismiss an action or claim under this section, unless opposed by the government, but if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a federal criminal civil or administrative hearing in which the government or its agent is a party. So often the effect of the first suit may be to bar second related from suing under the public disclosure bar unless they qualify as original sources. Thank you, Mr. Suhrit. Mr. Elwood, you have reserved four minutes. Mr. Stewart said that the only language in the provision in the War of the Suspension Limitations Act, which limited to crimes, was the phrase, now indietable. And I disagree with that. If you look at the Anitrust Suspension Act that is reproduced in our brief, it said that what Congress you said there was any violation. It's very telling that 47 days after enacting the War of the Suspension Limitations Act, which used offense to apply only to crimes, it said, any violation, which is now indietable or subject to a civil proceeding. So it was the word offense there that was limiting it to crimes, not the word not now indietable. In addition, I want to be perfectly clear about this. And page five of our plibrary of a note three, we go through all of the claimed criminal code provisions which supposedly use the word offense to mean a civil violation and they do not. Every time the word offense appears, it is to describe the crime in the statute, not something else that may say the conduct underlying the offense or something like that. But every time they use the word offense, it is to refer to a crime and nothing else. Mr. Stewart also mentioned this, the Hado case. And so this was decided against the backdrop of Hado. I want to point out that the crime and issue in Hado is the last criminal code provision which they have identified, which used the word offense they say to include a civil violation. And the government there said that that was taken care of. It is now no longer a, no longer applies the civil violations because the Congress amended it 371, the conspiracy statute to say that a minor offense is a misdemeanor. Well, that has exactly the same effect of the statute that I talked about earlier. It was enforced today this provision, the War Times of Spension Act was enacted. It says that offenses are either felonies or misdemeanors. Nobody has said a word about that yet. And as exactly the same provision as the amendment, Mr. Stewart says overworld Hado. Also, I think Hado has to be viewed in light of the case it cited. A five-page opinion, it relied heavily on the 1893 case of petty bone which just said there can be conspiracies to violate the civilian laws. So I think Hado is a conspiracy case and nothing more. Oh, and respect to the, the residue to Cata. I want to point out that at this point still no one has cited a case in which related to is bound by the loss of a later one. Taylor versus Sturgell talks about representative litigation and I think that that maybe works in one direction and that the government can be bound by a later one's loss. But it's hard to say that later one. I mean, at least I would be more than happy to argue this position, but I can expect that there will be some pushback probably including from the government at that time. If I say that related to was the representative of related one when related to was a stranger to related one related to the state of the government, this purpose. But in any event, no one has yet cited to me a case where this has already been determined so it's all litigation risk to my client now. And finally I want to point out one final thing which is that Mr. Stewart said that a undeclared war under the pre amendment war times suspension act did not apply to undeclared wars. The fourth circuit said differently and the government has now confessed error or at least said that the fourth circuit aired in that position. I just wanted to bring that to the court's attention even though it is at most a true shear issue before this court. And if there are no further questions, we'll allow our submission. Thank you, Council. Case is submitted

Legal Case Summary

Kellogg Brown & Root Services, Inc. v. United States, ex rel, Carter

Date Argued: Tue Jan 13 2015

Case Number:

Docket Number: 2625119

Judges:Not available

Duration: 61 minutes

Court Name: Supreme Court

Case Summary

Kellogg Brown & Root Services, Inc. v. United States, ex rel, Carter

Oral Audio Transcript(Beta version)