In a long-awaited ruling, the Supreme Court held that the Wartime Suspension Limitations Act (WSLA) does not toll the statute of limitations in civil FCA actions, as the WSLA applies only to criminal actions.  After lying dormant for more than 40 years, the WSLA had threatened to upend the FCA’s limitations period and expose defendants to open-ended and extensive liability for otherwise stale FCA claims.

Amended in 2008, the WSLA provides that the statute of limitations applicable to any offense involving fraud against the United States during a time of war or when Congress has enacted a specific authorization for the use of military force is suspended until five years after the termination of hostilities.  In a number of recent cases, relators had begun relying on the WSLA as a means to avoid dismissal of claims brought outside of the FCA’s limitations period.

In Kellogg Brown & Root Service, Inc. v. U.S. ex rel. Carter, the Supreme Court unanimously reversed a 2013 opinion by the Fourth Circuit, which had held that a relator could rely upon the WSLA to toll the FCA’s limitations period.  The Supreme Court rejected the notion that the WSLA should apply to civil claims as well as criminal charges and provided much needed certainty for defendants facing untimely FCA claims.

The Supreme Court’s opinion also addressed the first-to-file rule in FCA cases.  That rule provides that “[w]hen a person brings an action . . . no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”  In considering whether a dismissed action would be considered “pending” while on appeal, the Supreme Court explained that a qui tam suit under the FCA ceases to be “pending” once it is dismissed.

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Photo of Matt Curley Matt Curley

Matt Curley is co-chair of the Bass, Berry & Sims Healthcare Fraud Task Force and represents clients in connection with internal and governmental investigations and related civil and criminal proceedings, particularly involving matters of fraud and abuse within the healthcare industry. Matt has…

Matt Curley is co-chair of the Bass, Berry & Sims Healthcare Fraud Task Force and represents clients in connection with internal and governmental investigations and related civil and criminal proceedings, particularly involving matters of fraud and abuse within the healthcare industry. Matt has considerable experience in litigating matters under the False Claims Act (FCA) and in representing clients in actions and investigations brought by government regulators, including the U.S. Department of Justice (DOJ), the U.S. Department of Health and Human Services Office of the Inspector General (HHS-OIG) and various state agencies.

Photo of John Eason John Eason

John Eason focuses his practice on representing clients in government enforcement actions, investigations, and related litigation, particularly involving the False Claims Act (FCA). John has represented companies and individuals, particularly in the healthcare industry, in responding to inquiries and investigations by the Department…

John Eason focuses his practice on representing clients in government enforcement actions, investigations, and related litigation, particularly involving the False Claims Act (FCA). John has represented companies and individuals, particularly in the healthcare industry, in responding to inquiries and investigations by the Department of Justice, U.S. Attorneys’ Offices, Office of the Inspector General of the Department of Health and Human Services, and other federal and state agencies, regarding healthcare and procurement fraud issues.