4 From the 4th: Bank Robber, False Claims Act Qui Tam Case SOL?

By William Peacock, Esq. on October 09, 2014 | Last updated on March 21, 2019

We quipped that the Tenth Circuit's two SCOTUS-bound cases were the most boring you'd hear all year long. Apparently, we were wrong. Meet the case that has twin issues: a "first to file" limit on related qui tam actions, as well as a six-year-statute of limitations that bars claims ... except maybe, when we're in wartime. Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter is not a case you'll want to read before operating heavy machinery.

Fortunately, the final case in the Fourth Circuit's four-pack is Whitfield v. U.S., an attempted bank robbery case that includes a botched indictment, a lady who was frightened to death, and a wee bit of statutory interpretation. The second case, folks, is fascinating.

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Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter (Oral Argument: TBD)

We're going to simplify this a bit: A whole bunch of people noticed that Halliburton/KBR was ripping off the military by having staff sign-off on 12-hour time sheets, even if they didn't work that many hours. Thorpe was filed in California, while Carter was filed shortly thereafter.

The Federal Claims Act (FCA) allows qui tam actions to be brought, but only one per case in a "first to file" system. Carter got kicked, was re-filed after Thorpe failed, and got kicked again because his initial appeal was still pending. He then filed a third time, but was kicked again because of some other pending cases. Basically, this is a rat race to get to any courthouse in America, but even if you get beat, there's still hope for the patient plaintiff.

The more comprehensible issue is whether the Wartime Suspension of Limitations Act applies in our pseudo-state of war, because if it does, there really is no statute of limitations. The second issue is whether, contrary to many courts' holdings, the "first to file" rule allows an indefinite series of re-filings, as long as eventually, there is no prior case still pending.

You can see how the combination of these two issues is really bad for KBR, which seems to be getting slammed with these"ripped off the military" lawsuits, and for whom we totally feel bad for. The Fourth Circuit, however, had no such sympathy and allowed his lawsuit to proceed.

Official Questions Presented:

1. Whether the Wartime Suspension of Limitations Act -- a criminal code provision that tolls the statute of limitations for "any offense" involving fraud against the government "[w]hen the United States is at war," 18 U.S.C. § 3287, and which this Court has instructed must be "narrowly construed" in favor of repose -- applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling.

2. Whether, contrary to the conclusion of numerous courts, the False Claims Act's so-called "first-to-file" bar, 31 U.S.C. § 3730(b)(5) -- which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims -- functions as a "one-case-at-a-time" rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

Larry Whitfield v. United States (Oral Argument: December 2)

Whitfield, along with an accomplice, made a comical attempt at robbing a local credit union: The metal detectors automatically locked them out and alerted the police. While fleeing, Whitfield broke into a couple of houses, ending inside the house of a little old lady with health problems. He asked her to go into the computer room while he was hiding out, and tragically, she died of a heart attack.

In the initial indictment, the government failed to clearly list § 2113(e), the "death results" provision that leads to a life sentence -- but the judge instructed the jury to consider it anyway. The Fourth Circuit reversed the life sentence on that basis, and on resentencing, he was given 264 months, affirmed in an unpublished decision.

The key to his massive sentence is a separate offense in that same section of the statute: The preceding clause "forces any person to accompany him without the consent of such person." The Fourth Circuit, following the Eleventh Circuit, held that the de minimis movement of asking her to go into the computer room counts. According to his cert. petition, other circuits require actual movement, while the Ninth Circuit stands alone, confused, in the corner, and requires something in between. If the Court sides with Whitfield, his sentence may become de minimis because no minimum sentence applies.

Official Question Presented:

[W]hether § 2113(e)'s forced-accompaniment offense requires proof of more than a de minimis movement of the victim.

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