United States ex rel. Carter v. Halliburton Co. , 710 F.3d 171 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES ex rel. BENJAMIN 
CARTER,
Plaintiff-Appellant,
v.
HALLIBURTON CO.; KELLOGG BROWN  No. 12-1011
& ROOT SERVICES, INC.; SERVICE
EMPLOYEES INTERNATIONAL, INC.;
KBR, INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(1:11-cv-00602-JCC-JFA)
Argued: October 26, 2012
Decided: March 18, 2013
Before AGEE, WYNN, and FLOYD, Circuit Judges.
Reversed and remanded by published opinion. Judge Floyd
wrote the majority opinion, in which Judge Wynn joined.
Judge Wynn wrote a separate concurring opinion. Judge Agee
wrote a separate opinion concurring in part and dissenting in
part.
2 UNITED STATES v. HALLIBURTON CO.
COUNSEL
ARGUED: William Clifton Holmes, DUNLAP, GRUBB &
WEAVER, PC, Leesburg, Virginia, for Appellant. John Mar-
tin Faust, LAW OFFICE OF JOHN M. FAUST, PLLC,
Washington, D.C., for Appellees. ON BRIEF: Thomas M.
Dunlap, David Ludwig, DUNLAP, GRUBB & WEAVER,
PC, Leesburg, Virginia, for Appellant. Craig D. Margolis,
Tirzah S. Lollar, Kathryn B. Codd, VINSON & ELKINS
LLP, Washington, D.C., for Appellees.
OPINION
FLOYD, Circuit Judge:
Appellant Benjamin Carter appeals the district court’s dis-
missal of his complaint with prejudice. The matter was initi-
ated upon Carter’s filing of a qui tam lawsuit under the False
Claims Act (FCA), 31 U.S.C. § 3729. The subject matter
underlying this case involves Appellees’—Halliburton Com-
pany; KBR, Inc.; Kellogg Brown & Root Services, Inc.; and
Service Employees International, Inc. (collectively
KBR)—alleged fraudulent billing of the United States for ser-
vices provided to the military forces serving in Iraq. The dis-
trict court concluded that it lacked subject matter jurisdiction
over Carter’s claims because of the False Claims Act’s first-
to-file bar, 31 U.S.C. § 3730(b)(5). The district court also held
that Carter’s complaint had been filed beyond the six-year
statute of limitations in the FCA and was not tolled by the
Wartime Suspension of Limitations Act (WSLA), 18 U.S.C.
§ 3287, which the court ruled does not apply to non-
intervened qui tam cases. Accordingly, the district court dis-
missed Carter’s complaint with prejudice. Because we con-
clude that the district court had subject matter jurisdiction and
find that the WSLA applies to this action, we reverse. Further,
because it may be appropriate for the district court to make
UNITED STATES v. HALLIBURTON CO. 3
factual findings to consider the public disclosure claim urged
by KBR, we remand so the district court can consider this
issue.
I.
In his complaint, Carter brings a qui tam action under the
False Claims Act, 31 U.S.C. §§ 3729 through 3733. The FCA
allows the United States to bring suit to recover funds and
also allows, through the Act’s qui tam provisions, for a pri-
vate plaintiff (relator) to sue in place of the government and
keep a share of the proceeds. See 31 U.S.C. § 3730(a)-(d).
Carter alleges that KBR falsely billed the United States for
services performed in Iraq. Specifically, Carter alleges that
KBR "knowingly presented to an officer or employee of the
United States Government . . . false or fraudulent claims for
payment or approval in violation of 31 U.S.C. § 3729(a)(1)."
Carter goes on to allege that KBR "knowingly made, used, or
caused to be made or used, false records or statements to get
false or fraudulent claims paid or approved by the Govern-
ment" in violation of 31 U.S.C. § 3729(a)(2).
KBR provided logistical services to the United States mili-
tary in Iraq under a government contract. Carter worked for
KBR as a reverse osmosis water purification unit (ROWPU)
operator at two camps in Iraq from mid-January 2005 until
April 2005. Carter was hired to test and purify water for the
troops in Iraq. Carter claims that KBR was in fact not purify-
ing water during the time period but was repeatedly misrepre-
senting to the United States that it was. Carter submits that
water purification did not actually begin until May 2005. Fur-
ther, Carter maintains that he and his fellow employees were
instructed to submit time sheets for twelve-hour days for work
that they performed on ROWPU functions. During this time,
Carter states that he was actually not working any hours on
ROWPU functions. Carter also contends as part of an overall
scheme by KBR to overbill the government for labor charges,
that all trade employees were required to submit time sheets
4 UNITED STATES v. HALLIBURTON CO.
totaling exactly twelve hours per day and eighty-four hours
per week and that it was "routine practice" of the employees
to do so regardless of actual hours worked. As a result,
according to Carter, the United States paid KBR for work not
actually performed.
Carter filed his original complaint under seal on February
1, 2006, in the United States District Court for the Central
District of California. United States ex rel. Carter v. Hallibur-
ton Co., No. 06-cv-0616 (C.D. Cal. filed Feb. 1, 2006). After
over two years of investigation into the matter, the action was
unsealed in May 2008. Shortly thereafter, the case was trans-
ferred to the Eastern District of Virginia in October 2008, at
which point Carter amended his complaint. United States ex
rel. Carter v. Halliburton Co., No. 08-cv-1162 (E.D. Va. filed
Feb. 1, 2006). The district court dismissed Carter’s first
amended complaint without prejudice in January 2009 for
failure to plead fraud with particularity. Carter then amended
his complaint for a second time and re-filed his complaint in
January 2009 (Carter 2009). KBR then moved to dismiss Car-
ter’s second amended complaint under Rules 9(b) and
12(b)(6) of the Federal Rules of Civil Procedure, which the
district court granted in part. The district court, however,
refused to dismiss counts 1 and 4. Count 1 alleged a scheme
by KBR to submit fraudulent claims for payment to the gov-
ernment, and count 4 alleged fraudulent statements knowingly
made to the government to receive claims for payment. At
this point, KBR answered the remaining allegations and the
case proceeded through discovery, which closed in March
2010.
In March 2010, one month before the scheduled trial date,
the parties were contacted by the United States Department of
Justice, who informed them of the existence of a False Claims
Act case containing similar allegations filed under seal in
December 2005, in the United States District Court for the
Central District of California, United States ex rel. Thorpe v.
Halliburton Co., No. 05-cv-08924 (C.D. Cal. filed Dec. 23,
UNITED STATES v. HALLIBURTON CO. 5
2005). Thorpe also alleges that KBR’s standard operating pro-
cedure was billing twelve hours per day, without regard to the
actual hours worked to perpetuate a scheme to overbill the
government. In April 2010, KBR filed a motion to dismiss
Carter 2009, arguing that Thorpe constituted a "related"
action under FCA § 3730(b)(5). In response, Carter argued
that Thorpe was materially different from his case because he
focused on KBR’s alleged fraudulent misrepresentation to the
government that KBR was actually performing water services
for which it was submitting bills.
The district court rejected Carter’s characterization, reason-
ing that he must show that KBR employees were reporting
hours that they did not work and the fact that KBR was not
performing water services is merely evidence that the time
sheets were false. The district court dismissed Carter 2009
without prejudice on May 10, 2010. Carter, No. 08-cv-1162.
Carter appealed the dismissal on July 13, 2010.
Thereafter, the United States District Court for the Central
District of California dismissed the Thorpe action on July 30,
2010. In response, Carter re-filed his complaint (Carter 2010)
in the United States District Court for the Eastern District of
Virginia while his appeal was still pending. United States ex
rel. Carter v. Halliburton Co., No. 10-cv-864 (E.D. Va. filed
Aug. 4, 2010). When Carter re-filed his complaint, he also
sought to dismiss his appeal in the 2009 action. This Court
granted Carter’s motion to dismiss his appeal on February 14,
2011. Meanwhile, Carter 2010 proceeded in the district court
and, on May 24, 2011, the district court dismissed Carter’s
complaint without prejudice, on the grounds that Carter had
filed Carter 2010 while Carter 2009 was still pending on
appeal, thereby creating his own jurisdictional bar under the
FCA’s first-to-file provision. Carter, No. 10-cv-864. Carter
chose not to appeal this ruling.
However, Carter re-filed his complaint (Carter 2011) on
June 2, 2011. United States ex rel. Carter v. Halliburton Co.,
6 UNITED STATES v. HALLIBURTON CO.
No. 11-cv-602 (E.D. Va. filed June 2, 2011). The district
court unsealed the complaint on August 24, 2011. The com-
plaint in this case is identical to the earlier 2010 complaint as
well the second amended complaint filed in 2009. After the
complaint was unsealed, KBR moved to dismiss the action,
arguing that the complaint was barred by two related actions,
that the case was time barred, and that the case was barred by
the public disclosure provision of the FCA.
At the time Carter 2011 was filed, two allegedly related
cases were pending: United States ex rel. Duprey, No. 8:07-
cv-1487(D. Md. filed June 5, 2007) and another action—that
is under seal—filed in Texas in 2007. Duprey and the Texas
action allege that KBR "knowingly presented, or caused to be
presented, to an officer or employee of the United States Gov-
ernment, false or fraudulent claims for payment or approval
in violation of 31 U.S.C. § 3729(a)(1)." Since at least March
2003, KBR provided shipping and transportation support in
Iraq for the United States military. The Duprey relator was
employed by KBR as a truck driver in Iraq from March 27,
2005, to January 15, 2006. The Texas relators were also truck
drivers in Iraq, and at least one relator was present in Iraq dur-
ing the period of September 2003 to March 15, 2004. Both
complaints allege substantially similar claims, namely that
KBR had a policy that its drivers enter time sheets reflecting
a twelve hour workday and an eighty-four hour work week,
without regard to actual hours worked. The relators alleged
that this practice was widespread throughout KBR’s opera-
tions in Iraq and elsewhere. Duprey was subsequently volun-
tarily dismissed in October 2011, and the Texas action was
voluntarily dismissed in March 2012.
The district court granted KBR’s motion and dismissed the
complaint with prejudice on November 29, 2011, ruling that
the case was related to Duprey and the Texas action. The
court also found that Duprey was "pending" for purposes of
the first-to-file bar, because it had not been dismissed at the
time Carter 2011 was filed. The court considered whether the
UNITED STATES v. HALLIBURTON CO. 7
Texas action was also "pending" as to bar Carter 2011, but
ultimately concluded that it need not decide the issue because
at least one case—Duprey—was pending. The district court
also held that Carter 2011 had been filed beyond the FCA’s
six-year statute of limitations and would be time barred
should it be re-filed. Because of this reason, the court dis-
missed the case with prejudice. The district court further held
that Carter’s action was not tolled by the WSLA. The district
court held that the WSLA does not apply to claims under the
FCA brought by private relators. Finding ample grounds to
dismiss the action, the district court did not consider whether
the complaint was barred by the public disclosure provision
of the FCA. Carter timely appealed. We have jurisdiction pur-
suant to 28 U.S.C. § 1291.
II.
We review de novo the district court’s legal rulings, such
as its granting of KBR’s motion to dismiss. Simmons v.
United Mortg. & Loan Inv., LLC, 634 F.3d 754, 762 (4th Cir.
2011). To the extent that the decisions below involved legal
conclusions based upon factual determinations, we review the
factual findings for clear error, viewing the evidence in the
light most favorable to Carter. See id.III.
We first address Carter’s contention that the WSLA tolls
his action and therefore, that his claims are not time barred
under the FCA.
A.
First, as a general matter, qui tam actions must be brought
within six years after the date on which the alleged violation
occurred. 31 U.S.C. § 3731(b). The WSLA was enacted in
1942 to extend the time for prosecution to bring charges relat-
ing to criminal fraud offenses against the United States during
8 UNITED STATES v. HALLIBURTON CO.
times of war. Wartime Enforcement Fraud Act of 2008, S.
Rep. No. 110-431, at 2. When enacted, the law applied to "of-
fenses involving the defrauding or attempts to defraud the
United States . . . and now indictable under any existing stat-
utes." Dugan & McNamara, Inc. v. United States, 127 F.
Supp. 801, 802 (Ct. Cl. 1955). When amended in 1944, the
phrase "now indictable" was deleted. Id. at 802. The WSLA
was later codified, and is now to be used whenever the coun-
try is at war. Id.The Fifth Circuit has determined that the WSLA has three
components: "(1) a triggering clause (‘When the United States
is at war the running of [the applicable statute of limitations]
shall be suspended . . . ’), (2) a suspension period (‘three
years’), and (3) a termination clause (‘suspended until . . .
after the termination of hostilities as proclaimed by the Presi-
dent or by a concurrent resolution of Congress.’)." United
States v. Pfluger, 685 F.3d 481, 483 (5th Cir. 2012) (alter-
ations in original) (quoting 18 U.S.C. § 3287)). The Supreme
Court has held that the WSLA applies only to offenses com-
mitted after the triggering clause and before the termination
of hostilities. United States v. Smith, 342 U.S. 225, 262
(1952). The running of the limitations period then begins
when hostilities are terminated. Id. at 262.
Prior to October 4, 2008, the WSLA provided:
When the United States is at war the running of any
statute of limitations applicable to any offense (1)
involving fraud or attempted fraud against the
United States . . . shall be suspended until three years
after the termination of hostilities as proclaimed by
the President or by a concurrent resolution of Con-
gress.
18 U.S.C. § 3287 (2006) (current version at 18 U.S.C. § 3287(2011)). In 2008, the Wartime Enforcement of Fraud Act
(WEFA) amended the WSLA to expand its times of operation
UNITED STATES v. HALLIBURTON CO. 9
to "[w]hen the United States is at war or Congress has enacted
specific authorization for the use of the Armed Forces, as
described in section 5(b) of the War Powers Resolution (50
U.S.C. 1544(b))." See Wartime Enforcement of Fraud Act,
Pub. L. No. 110-417 § 855, codified at 18 U.S.C. § 3287.
Additionally, the suspension period was extended until "5
years after the termination of hostilities as proclaimed by a
Presidential proclamation, with notice to Congress, or by a
concurrent resolution of Congress." Id.Courts are in disagreement as to which version of the
WSLA applies to offenses that occurred before the amend-
ments of 2008. Additionally, courts are in conflict as to
whether the pre-amendment WSLA requires a formal declara-
tion of war or whether the authorized use of military force
shall suffice.
B.
Carter contends that the conflict in Iraq in 2005 is sufficient
to trigger WSLA’s "at war" status under either version of the
WSLA. KBR however, urges us not to apply the post-
amendment WSLA because it believes that the post-
amendment WSLA implicates its constitutional due process
rights in that the Act may allow a statute of limitations to run
indefinitely.
The question presented is the meaning of "at war" as it
appears in the WSLA. As with all questions of statutory con-
struction, we begin by examining the statute’s language.
"[W]hen a statute speaks with clarity to an issue[,] judicial
inquiry into the statute’s meaning, in all but the most extraor-
dinary circumstance, is finished." Ramey v. Dir., Office of
Workers’ Comp. Program, 326 F.3d 474, 476 (4th Cir. 2003)
(second alteration in original) (quoting Estate of Cowert v.
Nicklos Drilling Co., 505 U.S. 469, 475 (1992)) (internal quo-
tation marks omitted). In interpreting a statute we "must pre-
sume that a legislature says in a statute what it means and
10 UNITED STATES v. HALLIBURTON CO.
means in a statute what it says there." Barnhart v. Sigmon
Coal Co., Inc., 534 U.S. 438, 461-62 (2002).
Although the meaning of "at war" may appear unambigu-
ous at first glance, its meaning in the context of the WSLA
is not so clear. As the Supreme Court has noted, "Congress in
drafting laws may decide that the Nation may be ‘at war’ for
one purpose, and ‘at peace’ for another." Lee v. Madigan, 358
U.S. 228, 231 (1959). Therefore, we must determine what
Congress meant by "at war" in the context of the WSLA.
As an initial matter, we find it unnecessary to decide which
version of the WSLA applies because we find that the Act
does not require a formal declaration of war. Therefore, under
either version of the Act, the United States was at war when
the acts at issue occurred. We find that the Act does not
require a formal declaration of war for several reasons. First,
had Congress intended the phrase "at war" to encompass only
declared wars, it could have written the limitation of "de-
clared war" into the Act as it has in numerous statutes. See,
e.g., 28 U.S.C. § 2416(d) (tolling provision for civil claims by
the United States seeking money damages applies only when
"the United States is in a state of war declared pursuant to
article I, section 8, of the Constitution of the United States.");
50 U.S.C. § 1829 ("Notwithstanding any other provision of
law, the President, through the Attorney General, may autho-
rize physical searches without a court order . . . to acquire for-
eign intelligence information for a period not to exceed 15
calendar days following a declaration of war by the Con-
gress.").
Next, we believe that requiring a declared war would be an
unduly formalistic approach that ignores the realities of today,
where the United States engages in massive military cam-
paigns resulting in enormous expense and widespread blood-
shed without declaring a formal war. In fact, the United States
has not declared war since World War II. However, there
have been extensive military engagements in Vietnam, Korea,
UNITED STATES v. HALLIBURTON CO. 11
Kosovo, Afghanistan, and twice in Iraq. Indeed, the Supreme
Court has found that the laws of war apply to non-declared
wars, for example the war in Afghanistan. See Hamdi v.
Rumsfeld, 542 U.S. 507, 518 (2004) (holding that the deten-
tion of enemy combatants during conflicts is an incident of
the rules of war). Surely these circumstances result in situa-
tions in which fraud can easily be perpetuated against the
United States just as much as a formally declared war. The
purpose of the WSLA—to combat fraud at times when the
United States may not be able to act as quickly because it is
engaged in "war"—would be thwarted were we to find that
the United States must be involved in a declared war for the
Act to apply. See generally Wartime Enforcement Fraud Act
of 2008, S. Rep. No. 110-431, at 1-3.
With these principles in mind, we now address the specific
conflict in Iraq. On October 11, 2002, Congress authorized
the President to use military force to "defend the national
security of the United States against the continuing threat
posed by Iraq" and "enforce all relevant United Nations
Security Council resolutions regarding Iraq." Authorization
for the Use of Military Force against Iraq (AUMF), Pub. L.
107–243, 116 Stat. 114 (2002). Although not a formal recog-
nition of war, the AUMF signaled Congress’s recognition of
the President’s power to enter into armed hostilities. Based on
the foregoing analysis, we find that the United States was "at
war" in Iraq from the date of the AUMF issued by Congress
on October 11, 2002.
We now turn to when—and if—the hostilities in Iraq termi-
nated. The Fifth Circuit recently considered this issue in
Pfluger. 685 F.3d 481. There the court determined that termi-
nation clause of the WSLA required compliance with the for-
mal requirements set out in the clause because the language
of the clause was plain and unambiguous. Id. at 485. We
agree. The pre-amendment and post-amendment WSLA both
specify that termination shall not occur until the Act’s formal-
ities have been met. In the pre-amendment WSLA, termina-
12 UNITED STATES v. HALLIBURTON CO.
tion occurs when "proclaimed by the President or by a
concurrent resolution by Congress." 18 U.S.C. § 3287 (2006).
In the post-amendment WSLA, termination happens when
"proclaimed by a Presidential proclamation, with notice to
Congress, or by a concurrent resolution of Congress." 18
U.S.C. § 3287 (2011). Neither Congress nor the President had
met the formal requirements of the Act for terminating the
period of suspension when the claims at issue were presented
for payment. We therefore conclude that the United States
was at war during the relevant time period for purposes of the
WSLA.
C.
KBR next argues that the WSLA does not apply to Carter’s
claims because the WSLA by its plain terms applies only to
criminal cases. KBR bases its argument on the language in the
statute that states it applies to "offense[s] involving fraud" and
reasons that "offense" ordinarily means only crimes. 18
U.S.C. § 3287. Resolution of this issue requires us to interpret
the meaning of "offense" as used in the WSLA.
In Dugan & McNamara, 127 F. Supp. at 802-04, the court
examined both the legislative history of the Act and the mean-
ing of "offense." The court reasoned that the term "offense"
in the 1942 version referred only to criminal penalties. Id.
However, when amended in 1944, the phrase "now indict-
able" was deleted. The WSLA was then applicable to all
actions involving fraud against the United States. Id. at 802
("The 1942 statute with the phrase ‘now indictable’ spoke
clearly of only criminal offenses. The 1944 enactment deleted
that phrase . . . . This deletion leads us to the conclusion that
the Suspension Act then became applicable to all actions
involving fraud against the United States . . . ."). Further, all
but one court, United States v. Weaver, 107 F. Supp. 963, 966
(N.D. Ala. 1952), rev’d on other grounds, 207 F.2d 796 (5th
Cir. 1953), to have considered the issue of whether the WSLA
applies to civil claims have found that it applies. See, e.g.,
UNITED STATES v. HALLIBURTON CO. 13
United States v. Witherspoon, 211 F.2d 858 (6th Cir. 1954);
United States ex rel. McCans v. Armour & Co., 146 F. Supp.
546 (D.D.C. 1956); United States v. BNP Paribas, No. H-11-
3718, 2012 WL 3234233 (S.D. Tex. Aug. 6, 2012).
Had Congress intended for "offense" to apply only to crim-
inal offenses, it could have done so by not deleting the words
"now indictable" or it could have replaced that phrase with
similar wording. However, Congress did not include any lim-
iting language and it is our opinion that in failing to do so it
chose for the Act to apply to all offenses involving fraud
against the United States. Therefore, because we find the text
of the WSLA, the 1944 amendments, and the legislative his-
tory persuasive, we find that the WSLA applies to civil
claims.
D.
The district court found that even if the WSLA was appli-
cable to civil cases, it remains inapplicable to actions where
the United States is not a party. The district court relied on
this Court’s decision in United States ex rel. Sanders v. North
American Bus Industries Inc., 546 F.3d 288 (4th Cir. 2008),
for support that the WSLA includes actions brought only by
the United States. This Court held in Sanders that 31 U.S.C.
§ 3731(b)(2), a special statutory extension of the FCA’s stat-
ute of limitations, was available only to the government. Id.
at 593. Sanders’s reasoning is further supported by the fact
that the FCA has a statute of limitations that applies specifi-
cally to relators. 31 U.S.C. § 3731(b)(1). The limitations
period in § 3731(b)(2) starts when the government knows or
should know of "facts material to the right of action." Sand-
ers, 546 F.3d at 294 (quoting § 3731(b)(2)). The court rea-
soned:
This language makes perfect sense when referring to
an action brought by the government: the limitations
period is based on the government’s knowledge of
14 UNITED STATES v. HALLIBURTON CO.
‘facts material to the right of action’ because that
particular knowledge notifies the government that it
has an actionable FCA claim. But applying the stat-
ute’s language to a relator’s action makes no sense
whatsoever.
Id. at 294 (quoting § 3731(b)(2)). Unlike in Sanders, whether
the suit is brought by the United States or a relator is irrele-
vant to this case because the suspension of limitations in the
WSLA depends upon whether the country is at war and not
who brings the case. As such the district court’s reliance on
Sanders was misguided.
Courts are "authorized to deviate from the literal language
of a statute only if the plain language would lead to absurd
results, or if such an interpretation would defeat the intent of
Congress." Murkeldove v. Astrue, 635 F.3d 784, 793 (4th Cir.
2011) (quoting Kornman & Assocs., Inc. v. United States, 527
F.3d 443, 451 (5th Cir. 2008)) (internal quotation marks omit-
ted). Sanders follows this logic, but this principle does not
exclude relator-initiated actions from the ambit of the WSLA.
Including such actions does not lead to "absurd results" nor
"defeat the intent of Congress." See id. In fact, including civil
claims furthers the WSLA’s purpose: to root out fraud against
the United States during times of war. See generally Wartime
Enforcement Fraud Act of 2008, S. Rep. No. 110-431, at 2-5.
The district court’s reasoning for relying on Sanders was that
if the WSLA applied to a relator’s claims this would "allow
fraud [claims] to extend perhaps indefinitely." This is incor-
rect. The WSLA tolls the applicable period for a specified and
bounded time while the country is at war. By offering this
rationale, it appears the court was critiquing the purpose of
the WSLA itself and not providing a valid basis for excluding
relator-initiated claims from the WSLA. Accordingly, we are
unpersuaded that relator-initiated claims are excluded from
the ambit of the WSLA. Thus, Carter’s action is not time
barred.
UNITED STATES v. HALLIBURTON CO. 15
IV.
We next consider KBR’s argument that the FCA’s first-to-
file bar prohibits Carter’s case from proceeding.
A.
The FCA prescribes penalties for claims submitted to the
government that are known to be false. While encouraging
citizens to act as whistleblowers, the Act also seeks to prevent
parasitic lawsuits based on previously disclosed fraud. See
United States ex rel. St. John LaCorte v. Smith-Kline Bee-
cham Clinical Labs., Inc., 149 F.3d 227, 233 (3d Cir. 1998).
To reconcile these conflicting goals, the FCA has placed juris-
dictional limits on its qui tam provisions, including
§ 3730(b)(5)’s first-to-file bar and § 3730(e)(4)’s public dis-
closure provision.
Under the first-to-file bar, if Carter’s claims had been pre-
viously filed by another relator, then the district court lacked
subject matter jurisdiction. By the same token, the public dis-
closure bar prevents a relator from bringing an action if the
matters therein have already been made public knowledge,
except if the person is an original source of the information.
Although the provisions promote the same goals, they have
different requirements. Here the district court ruled on the
first-to-file bar and did not consider the public disclosure bar.
Because of this, we begin with the first-to-file bar.
B.
KBR argues that Duprey and the Texas action are related
actions that deprive this Court of jurisdiction under the first-
to-file bar. This Court has described the first-to-file bar as an
absolute, unambiguous exception-free rule. See United States
ex rel. LaCorte v. Wagner, 185 F.3d 188, 191 (4th Cir. 1999).
Therefore, whoever wins the race to the courthouse prevails
and the other case must be dismissed. The text of the relevant
16 UNITED STATES v. HALLIBURTON CO.
section provides that "[w]hen a person brings an action under
[the FCA], no person other than the Government may inter-
vene or bring a related action based on the facts underlying
the pending action." 31 U.S.C. § 3730(b)(5). Section
3730(b)(5) is jurisdictional and if an action is later filed that
is based on the facts underlying the pending case, the court
must dismiss the later case for lack of jurisdiction. See Wal-
burn v. Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir.
2005).
In determining whether a complaint is similar enough as to
be caught by the first-to-file bar, courts have applied varia-
tions of a common approach. Although the approaches vary,
courts have almost uniformly rejected an "identical facts" test
on the ground that the provision refers to a "related" action
rather than an "identical" action. The courts also agree that
differences in specifics—such as geographic location or
added facts—will not save a subsequent case. The Third,
Fifth, Sixth, Ninth, Tenth, and D.C. circuits have all adopted
a "same material elements test." United States ex rel. Lujan v.
Hughes Aircraft Co., 243 F.3d 1181, 1183 (9th Cir. 2011);
United States ex rel. Branch Consultants v. Allstate Ins. Co.,
560 F.3d 371, 378 (5th Cir. 2009); Walburn, 431 F.3d at 971;
Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276,
1279-1280 (10th Cir. 2004); United States ex rel. Hampton v.
Columbia/HCA Healthcare Corp., 318 F.3d 214, 217-218
(D.C. Cir. 2003); LaCorte, 149 F.3d at 232-33.
Under this test, a later suit is barred if it is based upon the
"same material elements of fraud" as the earlier suit, even
though the subsequent suit may "incorporate somewhat differ-
ent details." Lujan, 243 F.3d at 1189. "[T]he test prevents the
less vigilant whistle-blower from using insignificant factual
variations to allege what is essentially the same fraudulent
scheme already made known to the government." United
States ex rel. Folliard v. Synnex Corp., 798 F. Supp. 2d 66,
73 (D.D.C. 2011) (quoting United States ex rel. Batiste v.
SLM Corp., 740 F. Supp. 2d 98, 102 (D.D.C. 2010)) (internal
UNITED STATES v. HALLIBURTON CO. 17
quotation marks omitted). We find our sister circuits’ reason-
ing persuasive, and we join these circuits in adopting the "ma-
terial elements test."
C.
We shall now apply the material elements test to determine
whether Carter’s action is barred by either Duprey or the
Texas action. The allegations in Duprey, the Texas action, and
herein are substantially similar. All allege that KBR had a
systematic practice of overbilling the government for hours
worked by their employees. The employees were instructed to
complete their time sheets without regard to the number of
hours that were actually worked. These allegations of fraud
provide the government with enough knowledge of essential
facts of the scheme to discover related fraud. The government
would likely investigate billing practices across the company,
because Duprey notes that the official national policy was to
bill correctly but that the employees were consistently
instructed not to do so.
Carter seeks to distinguish his action by pointing out that
the other relators worked in different divisions and were truck
drivers, whereas he was a ROWPU employee. We are unper-
suaded that these distinctions are material. Duprey and the
Texas action both allege a broad scheme that encompasses the
time and location of Carter’s action. Even though the fraud
did occur via different types of employees and in different
divisions, this is insufficient to demonstrate that the scheme
Carter alleges is different from the one Duprey and the Texas
relators allege. As the Fifth Circuit noted, "a relator cannot
avoid § 3730(b)(5)’s first-to-file bar by simply adding factual
details or geographic location to the essential or material ele-
ments of a fraud claim . . . ." Branch Consultants, 560 F.3d
at 378. Here the fraud alleged—submission of false time
sheets in support of claims for false payment—is the same in
all of the complaints. Thus, Section 3730(b)(5)’s goal of pre-
venting parasitic qui tam lawsuits would not be furthered if all
18 UNITED STATES v. HALLIBURTON CO.
three actions were allowed to proceed on the same essential
claims.
D.
Carter argues that regardless of the relatedness of his com-
plaint to the other cases, the other cases cannot continue to
have a preclusive effect on his action. Carter argues that
because the Duprey and Texas action have been dismissed
neither can be deemed a "pending action" under § 3730(b)(5).
Following the plain language of the first-to-file bar, Car-
ter’s action will be barred by Duprey or the Texas action if
either case was pending when Carter filed suit. The Duprey
action was filed in 2007, and voluntarily dismissed in October
2011, after the relator failed to serve the complaint on the
defendants. The Texas action was filed in 2007 and voluntar-
ily dismissed in March 2012, when the government declined
to intervene. Therefore, both actions were pending when Car-
ter filed his complaint on June 2, 2011. Because we look at
the facts as they existed when the claim was brought to deter-
mine whether an action is barred by the first-to-file bar, we
conclude that Carter’s claims are barred by the Duprey and
Texas actions. However, this does not end our inquiry.
Carter alleges that the district court erred when it dismissed
his complaint with prejudice on the ground that his action was
forever barred by the Duprey action. In United States ex rel.
Chovanec v. Apria HealthCare Group, Inc., 606 F.3d 361,
365 (7th Cir. 2010), the Seventh Circuit reviewed a complaint
that was dismissed with prejudice because of a pending case.
The court reasoned that once the initial complaint was no lon-
ger pending, the bar of § 3730(b)(5) was inapplicable and
Chovanec was "entitled to file a new qui tam complaint." Id.
at 365. However, if a case is brought while the original case
is pending it must be dismissed "rather than left on ice." Id.
at 362. Although the doctrine of claim preclusion may prevent
the filing of subsequent cases, § 3730(b)(5) does not. This is
UNITED STATES v. HALLIBURTON CO. 19
especially true when the original case is dismissed on reasons
other than the merits or dismissed without prejudice. Id. at
362. Because Chovanec was entitled to file a new complaint,
the proceeding should have been dismissed without prejudice.
Id. at 365.
Similarly the Tenth Circuit has explained why an action
that is no longer pending cannot have a preclusive effect for
all future claims. In re Natural Gas Royalties Qui Tam Litig.,
566 F.3d 956, 963-64 (10th Cir. 2009). The court reasoned,
"if that prior claim is no longer pending, the first-to-file bar
no longer applies." Id. at 964. "The ‘pending’ requirement
much more effectively vindicates the goal of encouraging
relators to file; it protects the potential award of a relator
while his claim remains viable, but, when he drops his action
another relator . . . may pursue his own." Id.We agree that once a case is no longer pending the first-to-
file bar does not stop a relator from filing a related case. In
this case, both of the original actions have been dismissed.
Because of this, the first-to-file bar does not preclude Carter
from filing an action. The first-to-file bar allows a plaintiff to
bring a claim later; this is precisely what a dismissal without
prejudice allows a plaintiff to do as well. Therefore, Carter’s
only impediment at the moment is the district court’s dis-
missal with prejudice. And, as we have already concluded the
district court erred in dismissing Carter’s complaint with prej-
udice.
V.
KBR argues that this Court should affirm the dismissal of
Carter’s complaint on the alternative ground of the FCA’s
public disclosure provision. As noted previously, the public
disclosure bar removes subject matter jurisdiction for FCA
claims that are based upon matters that have been disclosed
publicly, unless the relator was the original source of the alle-
gations. KBR alleges that Carter was not the original source
20 UNITED STATES v. HALLIBURTON CO.
of the information, and that he gathered the information from
another KBR employee. The district did not reach this argu-
ment, having found grounds for dismissal elsewhere. We
decline to address this issue for the first time on appeal.
Because the district court should have the opportunity in the
first instance to address the facts relevant to public disclosure,
we remand this issue to the district court.
VI.
For the foregoing reasons we reverse the district court’s
dismissal of Carter’s complaint. Rather than address the alter-
native ground of the public disclosure bar for the first time on
appeal, we remand this issue to the district court for further
consideration.
REVERSED AND REMANDED
WYNN, Circuit Judge, concurring:
I fully concur in the fine majority opinion. I write sepa-
rately to address what appears to be the heart of the dissent’s
objections: that applying the Wartime Suspension of Limita-
tions Act, 18 U.S.C. § 3287, to the False Claims Act, 31
U.S.C. §§ 3729-33, actions in which the United States is not
plaintiff or intervenor is unwise because doing so is contrary
to the policy of strictly construing statutes of limitations and
the goals of the False Claims Act. In particular, the dissent
expresses concern that our decision will allow the False
Claims Act limitations period to "extend indefinitely" and,
consequently, will incentivize private plaintiffs to delay filing
their claims to maximize their potential recovery. Post at 38
n.6, 38-39. Because it is not our place to second-guess Con-
gress’s clearly expressed policy decisions, I respectfully dis-
agree with the dissent.
When interpreting a federal statute, the "cardinal rule . . .
is that the intent of [Congress] is to be given effect." NLRB
UNITED STATES v. HALLIBURTON CO. 21
v. Wheeling Elec. Co., 444 F.2d 783, 787 (4th Cir. 1971).
Typically, we ascertain Congressional intent from the plain
language of the statute. Id. If the plain language of the statute
unambiguously expresses Congress’s intent, our inquiry
comes to an end, even if we disagree with the policy
embraced by the statutory language. In re Sunterra Corp., 361
F.3d 257, 269 (4th Cir. 2004). For, as the Supreme Court has
explained,
Our individual appraisal of the wisdom or unwisdom
of a particular course consciously selected is to be
put aside in the process of interpreting a statute.
Once the meaning of an enactment is discerned and
its constitutionality determined, the judicial process
comes to an end. We do not sit as a committee of
review, nor are we vested with the power of veto.
Tenn. Valley Authority v. Hill, 437 U.S. 153, 194-95 (1978).
Here, as the majority correctly concludes and the dissent
tacitly acknowledges, the plain language of the Wartime Sus-
pension of Limitations Act extends the limitation period for
"any offense" of fraud against the United States during a time
of war. 18 U.S.C. § 3287. No doubt recognizing that it is not
our role to question Congress’s clearly expressed policy deter-
minations, the dissent relies on strained readings of the War-
time Suspension of Limitations Act and our precedent in an
attempt to argue that, under the plain language of the Wartime
Suspension of Limitations Act, the term "any offense" does
not encompass False Claims Act actions in which the govern-
ment is not a party.
First, the dissent appeals to our decision in United States ex
rel. Sanders v. North American Bus Industries, Inc., in which
we held that the False Claims Act limitations period tolling
provision, 31 U.S.C. § 3731(b)(2), does not apply to False
Claims Act actions in which the government is not a party.
546 F.3d 288, 293. Section 3731(b)(2) provides that the stan-
22 UNITED STATES v. HALLIBURTON CO.
dard six-year False Claims Act limitations may be tolled until
"no more than 3 years after the date when facts material to the
right of action are known or reasonably should have been
known by the official of the United States charged with
responsibility to act in the circumstances." In Sanders, we rea-
soned that Section 3731(b)(2) does not toll the limitations
period for private False Claims Act actions because it would
make little sense to have a suit’s limitations period turn on the
knowledge of an entity that is not party to the action. 546 F.3d
at 293.
The majority opinion correctly notes that Sanders is inap-
posite because it involved an entirely different statute, which
includes express language that supports distinguishing
between False Claims Act actions where the government is
and is not a party. Ante, at 13-14. Nevertheless, the dissent
tries to analogize the Wartime Suspension of Limitations Act
to Section 3731(b)(2), which was at issue in Sanders, by
asserting that federal government conduct controls the limita-
tions periods set out in both statutes. In particular, the dissent
notes that
[b]y the terms of the [Wartime Suspension of Limi-
tations Act], the government is solely entitled to
invoke and terminate the tolling provisions of the
statute . . . . The private qui tam plaintiff has no con-
nection with these decisions and it seems odd to con-
clude that such a private plaintiff should be entitled
to the same limitations period as the necessary actor,
the government. There is no such clear statutory
direction.
Post at 33. But Congress does not "invoke" the Wartime Sus-
pension of Limitations Act. Rather, the Wartime Suspension
of Limitations Act becomes effective when Congress declares
war or authorizes the use of military force. The invocation of
the Wartime Suspension of Limitations Act is at most a terti-
ary consideration in Congress’s decision to declare war or
UNITED STATES v. HALLIBURTON CO. 23
authorize the use of military force, and thus there is only a de
minimus relationship between the government conduct dis-
cussed in the Wartime Suspension of Limitations Act and any
particular False Claims Act claim. By contrast, with Section
3132(b)(2) the connection between the relevant government
conduct and a particular False Claims Act claim is quite close,
because whether Section 3132(b)(2) tolls the limitations
period turns on the government’s knowledge of the alleged
fraudulent conduct at issue in the particular False Claims Act
claim.
The dissent also places great weight on the fact that both
the Wartime Suspension of Limitations Act and its legislative
history are silent regarding qui tam relators in False Claims
Act actions, arguing that this silence "strongly suggests that
Congress did not intend the tolling provisions of the statute to
reach indiscriminately to any private plaintiff pursuing a
claim for fraud against the government." Post at 37, 39. Yet
the Supreme Court has admonished courts to tread carefully
in attempting to find meaning in statutory silence because
such silence is frequently amenable to multiple interpreta-
tions:
Not every silence is pregnant. In some cases, Con-
gress intends silence to rule out a particular statutory
application, while in others Congress’ silence signi-
fies merely an expectation that nothing more need be
said in order to effectuate the relevant legislative
objective. An inference from congressional silence
certainly cannot be credited when it is contrary to all
other textual and contextual evidence of congressio-
nal intent.
Burns v. United States, 501 U.S. 129, 136 (1991) (quotation
omitted), abrogated on other grounds by United States v.
Booker, 543 U.S. 220 (2005). Here, finding meaning in the
Wartime Suspension of Limitations Act’s silence is improper
because the silence just as reasonably can be interpreted as
24 UNITED STATES v. HALLIBURTON CO.
indicating that Congress did not intend to distinguish between
False Claims Act actions by private plaintiffs and those in
which the government is a party as it can be interpreted as
excluding actions by private relators from the ambit of the
Wartime Suspension of Limitations Act, as the dissent does.
Moreover, Congress’s decision not to clarify the scope of
"any offense" when amending the Wartime Suspension of
Limitations Act in 2008 in the face of numerous decisions
broadly interpreting "offense" in the Wartime Suspension of
Limitations Act casts further doubt on the dissent’s appeal to
statutory silence. A canon of statutory construction is that
"[w]e presume that when Congress amends a statute, it is
knowledgeable about judicial decisions interpreting the prior
legislation." Porter v. Bd. of Trustees of Manhattan Beach
Unified School Dist., 307 F.3d 1064, 1074 (9th Cir. 2002); see
also United States v. Langley, 62 F.3d 602, 605 (4th Cir.
1995) ("It is firmly entrenched that Congress is presumed to
enact legislation with knowledge of the law; that is with the
knowledge of the interpretation that courts have given to an
existing statute.").
Congress amended the Wartime Suspension of Limitations
Act in 2008 to broaden its scope by lengthening the tolling
period and clarifying that the statute applies to Congressional
authorizations of the use of military force as well as declared
wars. See Wartime Enforcement of Fraud Act, Pub. L. No.
110-417 § 855, codified at 18 U.S.C. 3287. Notably, the
amendment did not in any way alter, narrow, or circumscribe
the scope of the term "any offense." By the time of the 2008
amendment, numerous courts had held that the term "offense"
in the earlier version of the Wartime Suspension of Limita-
tions Act encompassed civil fraud claims, including False
Claims Act cases, see, e.g., United States v. Witherspoon, 211
F.2d 858 (6th Cir. 1954); United States v. BNP Paribas, 884
F. Supp. 2d 589, 602-05 (S.D. Tex. 2012), and the only court
to address whether the Wartime Suspension of Limitations
Act applies to non-intervened False Claims Act actions had
UNITED STATES v. HALLIBURTON CO. 25
determined that it did, albeit in dicta, United States ex rel.
McCans v. Armour & Co., 254 F.2d 90, 90 (D.C. Cir. 1958).
We must presume that Congress was aware of these interpre-
tations when it amended the Wartime Suspension of Limita-
tions Act in 2008, and its decision not to amend the statute to
exclude, or even discuss, False Claims Act actions, let alone
non-intervened False Claims Act actions, in the face of this
precedent suggests that it agreed with, or at least acquiesced
in, these judicial decisions. In such circumstances, Congress’s
silence favors the majority’s reading, rather than undermining
it.
Thus, neither of the dissent’s rationales for reading ambigu-
ity into the plain language of the statute is persuasive. There-
fore, we are left to conclude that when Congress said "any
offense," it meant any offense, including offenses raised by
private False Claims Act relators. Because the plain language
of the Wartime Suspension of Limitations Act indicates that
Congress intended the statute to apply to non-intervened False
Claims Act actions, it is not our place to question the wisdom
of this policy decision. Hill, 437 U.S. at 194-95.
Even if the plain language of the Wartime Suspension of
Limitations Act would allow us to consider the policy con-
cerns highlighted by the dissent—that our decision will "ex-
tend indefinitely" the limitations period for False Claims Act
claims and will encourage would-be relators to delay filing
their claims—I am not convinced that either concern is justi-
fied. First, the Wartime Suspension of Limitations Act tolls
the limitations period for fraud actions for a bounded period
of time: the time during which the country is at war or other-
wise engaged in a military conflict. 18 U.S.C. § 3287. More-
over, even if the informal nature of modern military conflicts
renders the limitations period established by the Wartime Sus-
pension of Limitations Act somewhat less definite, it is within
Congress’s purview to determine that certain conduct is suffi-
ciently egregious—such as defrauding the government during
a time of war—that an extended or indefinite limitations
26 UNITED STATES v. HALLIBURTON CO.
period is warranted. Indeed, Congress has elected to entirely
do away with limitations periods for many federal crimes. See
Charles Doyle, Cong. Research Serv., RL 31253, Statutes of
Limitation in Federal Criminal Cases: An Overview 18-24
(2012).
Second, any concern that our holding will encourage rela-
tors to sit on their claims in order to maximize recovery is
alleviated by the False Claims Act’s public disclosure and
first-to-file bars, which preclude a would-be relator from
bringing a claim that is based on information that has already
been publicly disclosed or that is "related" to a pending
action. See 31 U.S.C. §§ 3720(e)(4), 3730(b)(5). Regardless
of the applicability of the Wartime Suspension of Limitations
Act, False Claims Act relators have an incentive to bring
actions as early as possible to avoid having their claims dis-
missed under either of these two provisions.
In sum, the majority correctly concludes that the plain lan-
guage of the Wartime Suspension of Limitations Act unam-
biguously encompasses False Claims Act actions in which the
government is not a party. It is not this Court’s—or any
court’s—place to revisit Congress’s clearly articulated policy
determinations, even when we feel they are unwise. If, after
reviewing our decision, Congress agrees with the dissent that
limiting the Wartime Suspension of Limitations Act to False
Claims Act actions in which the government is a party is the
best policy, it is free to amend the statute, as it did in 2008.
Until that point, however, we are required to give effect to
Congress’ intent, as expressed through the plain and unambig-
uous language of the Wartime Suspension of Limitations Act,
that the tolling applies to "any offense." See Jerman v. Car-
lisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573,
130 S.Ct. 1605, 1624 (2010) ("To the extent Congress is per-
suaded that the policy concerns identified by the dissent
require a recalibration of [a statute], it is, of course, free to
amend the statute accordingly. . . . This court may not, how-
UNITED STATES v. HALLIBURTON CO. 27
ever, read more into [a statute] than the statutory language
naturally supports.").
AGEE, Circuit Judge, concurring in part and dissenting in
part:
I concur with the majority opinion that the "first-to-file"
rule does not act as a barrier to Benjamin Carter’s qui tam
action against Halliburton, Kellogg Brown & Root, and Ser-
vice Employees International (collectively "KBR"). However,
I do not agree with the holding in the majority opinion, princi-
pally section III D, that the Wartime Suspension of Limita-
tions Act ("WSLA"), 18 U.S.C. § 3287, tolls the six-year
limitations period set forth in the False Claims Act ("FCA"),
31 U.S.C. § 3731(b)(1), when the United States is not the
plaintiff or an intervenor. For that reason, I respectfully dis-
sent from the majority opinion insofar as it would allow Car-
ter to proceed on those of his claims that fall outside the six-
year FCA limitations period.
I.
Pursuant to 31 U.S.C. § 3731(b)(1), a civil action under the
FCA may not be brought more than six years after the date on
which the alleged violation was committed. In this case, the
vast majority of Carter’s claims against KBR stem from viola-
tions that allegedly took place before May 1, 2005.1 Pursuant
to § 3731(b)(1), therefore, Carter had until May 1, 2011, to
file his qui tam complaint against KBR for it to be deemed
timely. The latest iteration of Carter’s complaint, however,
was not filed until June 2, 2011. Thus, absent tolling, in some
form, the bulk of Carter’s claims are barred by the FCA’s lim-
1
Carter alleges that KBR fraudulently submitted one voucher to the
United States, totaling $673.56, on June 15, 2005. Because this was within
six years of the filing of Carter’s complaint in 2011, Carter’s FCA claim
related to that voucher is timely.
28 UNITED STATES v. HALLIBURTON CO.
itations period because they did not take place within six
years of the filing of the complaint.2
In 1942, Congress unanimously approved the first version
of the WSLA, which temporarily suspended the statute of lim-
itations in criminal contracting fraud cases arising out of the
Second World War. See Act of August 24, 1942, 56 Stat. 747.
Congress amended the WSLA in 1948, and the majority con-
cludes that the effect of those amendments was to extend the
reach of the WSLA to civil limitations periods, not merely
those arising in the criminal fraud context. See Act of June 25,
1948, 62 Stat. 683, 828. The majority may be correct, but the
issue is not without doubt.3
In 2011, at the time Carter filed his complaint, the WSLA
provided:
When the United States is at war or Congress has
enacted a specific authorization for the use of the
Armed Forces . . . the running of any statute of limi-
tations applicable to any offense (1) involving fraud
or attempted fraud against the United States or any
agency thereof in any manner, whether by conspir-
acy or not, or (2) committed in connection with the
acquisition, care, handling, custody, control or dispo-
sition of any real or personal property of the United
States, or (3) committed in connection with the
2
In addition to seeking to avail himself of tolling pursuant to the WSLA,
Carter argued before the district court and on appeal that he is entitled to
the benefit of equitable tolling. Although observing that his equitable toll-
ing claim was improperly before the court, the district court alternatively
held that "Carter cannot show that the instant suit is untimely due to cir-
cumstances external to his own conduct, and equitable tolling is inappro-
priate." (J.A. 620 n.11). I agree with the district court that equitable tolling
is unavailable to Carter.
3
Because I would hold that the WSLA does not apply in this case, I
would merely assume, without deciding, that the WSLA applies to civil
actions generally.
UNITED STATES v. HALLIBURTON CO. 29
negotiation, procurement, award, performance, pay-
ment for, interim financing, cancelation, or other ter-
mination or settlement, of any contract, subcontract,
or purchase order which is connected with or related
to the prosecution of the war or directly connected
with or related to the authorized use of the Armed
Forces, or with any disposition of termination inven-
tory by any war contractor or Government agency,
shall be suspended until 5 years after the termination
of hostilities as proclaimed by a Presidential procla-
mation, with notice to Congress, or by a concurrent
resolution of Congress. For purposes of applying
such definitions in this section, the term "war"
includes a specific authorization for the use of the
Armed Forces.
18 U.S.C. § 3287.4Carter argues that, by operation of the WSLA, the FCA
limitations period was suspended in 2005, at the time KBR
submitted allegedly false claims to the United States for pay-
ment. Accordingly, Carter posits (and the majority opinion
agrees) that the WSLA precludes KBR from asserting the
4
The majority opinion does not reach the question of whether the pre-
or post-2008 version of the WSLA applies to Carter’s qui tam complaint.
Ante at 9. If the WSLA applies to this case at all (and I believe that it does
not), it seems most likely that the post-2008 version of the statute would
apply. This is so because the amendments at issue concern the limitations
period for FCA actions and not the underlying conduct at issue. See Forest
v. USPS, 97 F.3d 137, 140 (6th Cir. 1996) (new statute of limitations has
prospective application because it applies to the filing of a complaint,
which occurred after the statute was enacted); but see Chenault v. USPS,
37 F.3d 535, 539 (9th Cir. 1994) ("[N]ewly enacted statute that lengthens
the applicable statute of limitations may not be applied retroactively to
revive a plaintiff’s claim that was otherwise barred under the old statutory
scheme.").
Thus, for purposes of this dissent, I will assume that if any version of
the WSLA applies, it is the version as amended in 2008.
30 UNITED STATES v. HALLIBURTON CO.
statute of limitations as a defense in this case. For reasons
explained below, I do not agree with that construction of the
WSLA.
II.
A.
This appeal presents a quintessential question of statutory
interpretation, which we review de novo. In re Maharaj, 681
F.3d 558, 568 (4th Cir. 2012).
"As in all cases of statutory interpretation, our inquiry
begins with the text of the statute." Chesapeake Ranch Water
Co. v. Bd. of Comm’rs of Calvert Cnty., 401 F.3d 274, 279
(4th Cir. 2005). "In that regard, we must first determine
whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute . . . and our
inquiry must cease if the statutory language is unambiguous
and the statutory scheme is coherent and consistent." United
States v. Bly, 510 F.3d 453, 460 (4th Cir. 2007) (quoting
United States v. Hayes, 482 F.3d 749, 752 (4th Cir. 2007)
(omission in original)). "We determine the ‘plainness or
ambiguity of the statutory language . . . by reference to the
language itself, the specific context in which that language is
used, and the broader context of the statute as a whole.’"
United States v. Thompson–Riviere, 561 F.3d 345, 354–55
(4th Cir. 2009) (quoting Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997) (omission in original).
B.
I note at the outset that no case has ever held (other than
in dicta) that the WSLA applies to civil cases where the
United States is not a plaintiff or intervenor in the qui tam
action. In the only case in which a court suggested the WSLA
did so apply, United States ex rel. McCans v. Armour & Co.,
146 F. Supp. 546 (D.D.C. 1956), the court’s conclusion was
UNITED STATES v. HALLIBURTON CO. 31
not the ratio decendi of the decision and was clearly dicta. In
McCans, the relator brought a qui tam complaint against
Armour & Co., a government contractor, alleging that
Armour sold certain pork products to war procurement agen-
cies at prices in excess of limitations set by Congress during
World War II. Although the allegedly illegal sales were con-
ducted between 1942 and 1943, the relator did not file her
complaint until 1954. While the district court discussed the
application of the WSLA tolling provisions to the relator’s
complaint, it concluded that the complaint was not timely
filed, even if WSLA tolling were applicable. Id. at 551. Any
discussion of WSLA tolling in McCans was thus clearly
unnecessary to the district court’s holding that the suit was
untimely. Accordingly, the court’s references to the WSLA’s
applicability to private plaintiffs is mere dicta. See Perez v.
Mountaire Farms, Inc., 650 F.3d 350, 373 (4th Cir. 2011)
("This additional observation was not necessary to the Court’s
resolution of the . . . issue that was the basis of its holding,
and we therefore conclude that the observation is merely
dicta."); Bettius & Sanderson, P.C. v. Nat’l Fire Union Fire
Ins. Co., 839 F.2d 1009, 1019 n.3 (4th Cir. 1988) (Murnag-
han, J., concurring in part and dissenting in part) ("To reach
out and decide what need not be decided is frequently deni-
grated as dictum.").
C.
As there is no direct authority for application of the WSLA
here, I find the reasoning in United States ex rel. Sanders v.
North American Bus Industries, Inc., 546 F. 3d 288 (4th Cir.
2008), a persuasive guide to our disposition of this issue.
Sanders concerned the construction of 31 U.S.C. § 3731(b),
the FCA’s limitations provisions; the same statute providing
the statute of limitations in this case. That statute provides
that
[a] civil action under [the FCA] may not be brought-
32 UNITED STATES v. HALLIBURTON CO.
(1) more than 6 years after the date on
which the violation of [the FCA] is com-
mitted, or
(2) more than 3 years after the date when
facts material to the right of action are
known or reasonably should have been
known by the official of the United States
charged with responsibility to act in the cir-
cumstances, but in no event more than 10
years after the date on which the violation
is committed,
whichever occurs last.
31 U.S.C. § 3731(b). The Sanders relator, whose complaint
was filed beyond the six-year limitations period described in
§ 3731(b)(1), sought to avail himself of § 3731(b)(2), which
runs the limitations period from the time the United States
receives (or reasonably should receive) notice of the violation.
We rejected that attempt.
Although we observed that § 3731(b) applied to "civil
action[s]" under the FCA, we held that the language of
§ 3731(b)(2) could only be logically applied when referring to
an action brought by the United States, not by a private rela-
tor. Id. at 294. In support of this holding we reasoned that "ap-
plying the statute’s language to a relator’s action makes no
sense whatsoever. The government’s knowledge of ‘facts
material to the right of action’ does not notify the relator of
anything, so that knowledge cannot reasonably begin the limi-
tations period for a relator’s claims." Id.
The Sanders court also made important observations about
the practical effect of allowing a private relator to claim the
benefit of a statutory limitations period intended for the bene-
fit of the government. It noted that extending the limitations
period for up to 10 years (the outer limit provided by
UNITED STATES v. HALLIBURTON CO. 33
§ 3731(b)(2)) in the case of a private relator would create
incentives contrary to the purposes of the FCA. Id. at 295.
"[R]elators would have a strong financial incentive to allow
false claims to build up over time before they filed, thereby
increasing their own potential recovery." Id. Critically, the
court went on to note that the relator’s proposed construction
would undermine the very purpose of the qui tam provisions
of the FCA: "to combat fraud quickly and efficiently by
encouraging relators to bring actions that the government can-
not or will not." Id.
Following the reasoning of Sanders in the instant case, I
agree with the holding of the district court that application of
the WSLA to a suit brought by a private relator is inconsistent
with the WSLA and its legislative history and would be con-
trary to the articulated goals of the FCA. Let me explain why
that is so.
At first blush, Carter is correct that the WSLA applies to
"any offense," involving fraud against the United States
(obviously, when certain conditions are met). But to read "any
offense" as encompassing actions by private relators is a
superficial reading of the WSLA and fails to construe the stat-
ute in context. By the terms of the WSLA, the government is
solely entitled to invoke and terminate the tolling provisions
of the that statute, however, the text of the WSLA is entirely
silent as to private relators. The triggering and terminating
provisions of the WSLA are both related to and solely con-
trolled actions of the United States government: declaration of
war or congressional authorization for use of military force
(to trigger) and congressional resolution or Presidential proc-
lamation (to terminate). In either circumstance, Congress and
the President possess the unique power to invoke the WSLA
to toll the limitations period for fraud offenses: a period when
the same government is thus released from a looming time bar
to bring an FCA claim. The private qui tam plaintiff has no
connection with these decisions and it seems odd to conclude
that such a private plaintiff, absent a clear statutory direction,
34 UNITED STATES v. HALLIBURTON CO.
should be entitled to the same limitations period as the neces-
sary actor, the government. There is no such clear statutory
direction.
In Sanders, we declined to find that the private party relator
could latch onto the § 3731(b)(2) exception since the relator
was neither mentioned in the statute or legislative history as
authorized to do so. Similarly, here with the WSLA, we find
no mention of the private party relator in the statute or its leg-
islative history: again, an odd basis upon which to extend the
tolling of a statute of limitations which is to be strictly con-
strued. See Bridges v. United States, 346 U.S. 209, 215-16
(1953) (holding that, because the WSLA is an exception to
the "longstanding congressional policy of repose," it is "to be
liberally interpreted in favor of repose").
Simply reading "any offense" to encompass all offenses
regardless of whether the United States is the plaintiff, is
inconsistent with the nuanced approach that courts have
employed when reading the "civil action" language in
§ 3731(b). We reasoned in Sanders that "a civil action"
should not be read to encompass all FCA actions, but rather,
should be read in context to include only those actions
brought by the United States. Sanders, 546 F.3d at 294-95.
Here, the WSLA (like § 3731(b)(2)) mentions the United
States, not private relators. Thus the text of the WSLA, on its
own, supports the proposition that only the United States may
take advantage of its tolling provisions. Nevertheless, I also
find that this interpretation is consistent with the purposes and
legislative history of the WSLA.
D.
The Supreme Court has described the rationale underlying
the passage of the WSLA during World War II as follows:
The fear was that the law-enforcement officers
would be so preoccupied with prosecution of the war
UNITED STATES v. HALLIBURTON CO. 35
effort that the crimes of fraud perpetrated against the
United States would be forgotten until it was too
late. The implicit premise of the legislation is that
the frenzied activities, existing at the time the Act
became law, would continue until hostilities termi-
nated and that until then the public interest should
not be disadvantaged.
United States v. Smith, 342 U.S. 225, 228-29 (1952); see also
id. at 230 (Clark, J., concurring) ("Soon after the beginning of
World War II, Congress realized that it would be impossible
for the Department of Justice currently to investigate and
prosecute the large number of offenses arising out of the war
effort. Therefore Congress suspended the running of the stat-
ute of limitations as to frauds against the Government . . . .
It is clear that Congress intended to give the Department more
time to apprehend, investigate, and prosecute offenses occur-
ring ‘under the stress of present-day events’ of the war.").
In other words, the Court recognized that the primary con-
cern motivating Congress in passing the WSLA was the abil-
ity of law enforcement to effectively police fraud against the
government during the fog of war. See, e.g., 21 Am. Jur. 2d
Criminal Law § 264 (2013) ("The purpose of the [WSLA] is
to give government law enforcement officials additional time
to discover and punish offenses related to the commercial
aspect of war programs, where extensive war efforts render
them unable to deal with those offenses within the normal
period of limitation." (emphasis added)). This concern is evi-
dent in the WSLA’s legislative history.
During normal times the present 3-year statute of
limitations may afford the Department of Justice suf-
ficient time to investigate, discover, and gather evi-
dence to prosecute frauds against the Government.
The United States, however, is engaged in a gigantic
war program. Huge sums of money are being
expended for materials and equipment in order to
36 UNITED STATES v. HALLIBURTON CO.
carry on the war successfully. Although steps have
been taken to prevent and to prosecute frauds against
the Government, it is recognized that in the varied
dealings opportunities will no doubt be presented for
unscrupulous persons to defraud the Government or
some agency. These frauds may be difficult to dis-
cover as is often true of this type of offense and
many of them may not come to light for some time
to come. The law-enforcement branch of the Gov-
ernment is also busily engaged in its many duties,
including the enforcement of the espionage, sabo-
tage, and other laws.
Bridges, 346 U.S. at 217 n.18 (quoting S. Rep. No. 1544, 77th
Cong. 2d Sess). Once again, the concern of Congress, as
expressed in the legislative history, was the inability of the
Department of Justice and other federal law-enforcement enti-
ties to effectively prevent and prosecute fraud in light of other
duties antecedent to waging war. The legislative history
makes no mention of private plaintiffs bringing relator actions
against those allegedly engaged in fraud.
The legislative history of the Wartime Enforcement of
Fraud Act of 2008 ("WEFA"), Pub. L. No. 110-417 § 855,
which contained the most recent amendments to the WSLA,
reveals that the same concerns motivated Congress in passing
the 2008 amendments to the WSLA. In sending the WEFA to
the full Senate, the Judiciary Committee report repeatedly
emphasized the difficulty of investigators, auditors, and the
Department of Justice in ferreting out fraud against the United
States during the conflicts in Iraq and Afghanistan. See S.
Rep. No. 110-431. Again, the legislative history is silent with
respect to private party relators.
The purpose of the WSLA (as articulated by the Supreme
Court) and the legislative history of that statute confirm what
the text reflects: that Congress was concerned with the ability
of the federal government to police fraud when the resources
UNITED STATES v. HALLIBURTON CO. 37
of its law enforcement were stretched thin by war. Tolling
afforded law enforcement the ability to thoroughly investigate
allegations of fraud without compromising the ability of the
United States to fulfill its military mission. Unlike federal law
enforcement, private relators are not "busily engaged in . . .
many duties, including the enforcement of the espionage, sab-
otage, and other laws." Bridges, 346 U.S. at 217 n.18 (quoting
S. Rep. No. 1544). And extending the benefits of tolling to
private relators does not "afford the Department of Justice
sufficient time to investigate, discover, and gather evidence to
prosecute frauds against the Government." Id. In sum, Con-
gress has shown no intent to toll the FCA’s limitations period
when the United States is not a plaintiff to the FCA action.
The complete silence as to relators in the legislative history
of the WSLA is all the more telling when one considers that
the FCA, which was originally passed in 1863, was on the
books when the Congress considered the WSLA in 1942 and
the WEFA in 2008. "Faced with statutory silence, we presume
that Congress is aware of the legal context in which it is legis-
lating." Palisades Collections LLC v. Shorts, 552 F.3d 327,
334 n.4 (4th Cir. 2008) (quoting Progressive W. Ins. Co. v.
Preciado, 479 F.3d 1014, 1017-18 (9th Cir. 2007) (internal
alterations omitted). Thus, the fact that Congress did not men-
tion qui tam plaintiffs in the legislative history of any version
of the WSLA strongly suggests that Congress did not intend
for the tolling provisions of that statute to reach indiscrimi-
nately to any private plaintiff pursuing a claim for fraud
against the government.
E.
Looking finally to the policies underlying the FCA, the
majority’s interpretation of the WSLA is plainly at odds with
the goals of the FCA. The policy concerns underlying the
FCA will be directly thwarted by allowing private relators to
take advantage of the WSLA’s tolling provisions. In this case,
for example, Carter’s claims arose in 2005, and application of
38 UNITED STATES v. HALLIBURTON CO.
the WSLA would extend the limitations period for his actions
well into the next decade at least, depending on the date hos-
tilities in Iraq are deemed terminated. Assuming for the sake
of argument, as the district court did, that the August 31,
2010, presidential statement of "the end of our combat mis-
sion in Iraq" was sufficient to end the tolling provisions of the
WSLA,5 (J.A. 628 n.33.), Carter would have until 2019,
nearly fourteen years after his claims accrued, to file a qui tam
action. Before the district court, Carter argued that hostilities
in Iraq have not formally ended, meaning that the limitations
period would still be tolled today, seven years after the alleg-
edly false claims were presented to the government. When
(and if) hostilities are formally declared terminated in Iraq, it
could be up another eleven years (five years after termination
of hostilities pursuant to the WSLA, plus the normal six year
limitations period prescribed in § 3731(b)(1)) before the limi-
tations period would be deemed to have ended.6 Such an
expansive limitations period applicable to private qui tam
plaintiffs is unsupported by statute, legislative history, or pre-
cedent.
In this respect, Sanders is again instructive, because it
accurately described the differing incentive structures that
motivate relators, as opposed to law enforcement, in the con-
text of FCA actions. As Sanders explained, a lengthy limita-
5
It is not clear that this declaration meets the statutory prerequisites to
end tolling as a matter of law, given the requirement contained in the
WSLA that the President give formal notice to Congress that hostilities are
terminated. See 18 U.S.C. § 3287.
6
The majority opinion criticizes the district court for opining that the
adoption of Carter’s construction of the WLSA could permit the statute of
limitations "to extend perhaps indefinitely." Ante at 14. But it is clear from
the WSLA itself that tolling will continue until either the President makes
a proclamation of termination of hostilities with formal notice to Con-
gress, or Congress passes a concurrent resolution to the same effect. The
record does not conclusively reflect that either Congress or the Chief
Executive have acted in the manner contemplated by the statute. If they
have not done so, tolling will indeed extend indefinitely.
UNITED STATES v. HALLIBURTON CO. 39
tions period would create a "strong financial incentive" for
relators to "allow false claims to build up over time before
they filed, thereby increasing their own potential recovery."
Sanders, 546 F.3d at 295. The government, on the other hand,
always has an incentive to quickly act to root out fraud
against the United States. The lengthy limitations period of
the WSLA, therefore, is uniquely helpful to a government that
is otherwise hampered from enforcing anti-fraud laws by the
externalities of waging a military conflict. Applying that same
lengthy limitations period to relators is uniquely problematic
because doing so thwarts the whole purpose of the FCA: "to
combat fraud quickly and efficiently by encouraging relators
to bring actions that the government cannot or will not—to
stimulate actions by private parties should the prosecuting
officers be tardy in bringing the suits." Id. (quoting United
States ex rel. Marcus v. Hess, 317 U.S. 537, 547 (1943))
(internal quotation marks omitted).
In fact, the concern identified by Sanders is exacerbated in
the context of wartime enforcement of anti-fraud laws. As the
legislative history to the WEFA notes, "often," during war,
"the Government does not learn about serious fraud until
years after the fact." S. Rep. No. 110-431. In contrast, private
party relators will be inclined to delay, allowing their poten-
tial recovery to increase, knowing that the government is
unlikely to discover the fraud, and therefore unlikely to be the
first to bring a claim against the perpetrators. Absent WSLA
tolling, relators are at least restricted to a six year window in
which to bring their claims. In the context of virtually indefi-
nite WSLA tolling, however, a relator could wait a decade or
more to bring a qui tam claim, secure in the knowledge that
law enforcement is otherwise too occupied with the exigen-
cies of war to discover the fraud on its own.
F.
The majority opinion does not address the arguments set
forth above, but summarily dismisses Sanders as inapplicable
40 UNITED STATES v. HALLIBURTON CO.
because, "whether the suit is brought by the United States or
a relator is irrelevant to this case because the suspension of
limitations in the WSLA depends on whether the country is
at war and not who brings the case." Ante at 14. This is a mis-
reading of Sanders, the statute, and the legislative history.
Like the WSLA, the limitations period at issue in Sanders did
not contain an express limitation on who could take advantage
of the tolling provision. Rather, the analysis in Sanders
focused on whether § 3731(b)(2) could be plausibly read to
encompass actions brought by private parties. Like
§ 3731(b)(2) in Sanders, the WSLA should be read in context,
keeping in mind both the purposes of that statute and the dire
effects of extending to relators a provision obviously intended
only for the government.
III.
The text, the purposes, and the legislative history of the
WSLA all counsel in favor of holding that the government
only, and not private relators, are entitled to take advantage of
that statute’s tolling provisions. Because the majority takes
the altogether novel step of expanding the WSLA to apply to
actions by relators, I must respectfully dissent from that
aspect of the majority’s holding.