Note: In what we believe is a NELF first, during the hearing of this case on January 13, 2015, Supreme Court Associate Justice Sotomayor specifically referred to NELF’s amicus brief, when she asked the attorney for the Petitioner whether he was “adopting the argument of the New England [Legal] Foundation, the amic[us] brief?” Counsel indicated that this was the case.
In this case the Supreme Court considered whether the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287 (“Suspension Act”), a criminal code provision of the federal False Claims Act (“FCA”), that suspends, during and for five years after times of armed conflict, the statute of limitations for “offenses involving [contractor] fraud . . . against the United States,” also applied to civil qui tam actions brought under the FCA. The FCA, first enacted during the Civil War, provides both criminal and civil remedies against federal government contractor fraud. On the civil side, the FCA encourages private whistleblowers (“relators”) to bring suit on behalf of the Government (“qui tam” actions); if successful, a civil qui tam plaintiff is awarded a share of the government’s damage award (between 15% and 30%). Such civil qui tam claims under the FCA are subject to a six-year limitations period. 31 U.S.C. § 3731(b)(1). The Fourth Circuit in this case concluded that the Suspension Act applies to both criminal and civil claims of contractor fraud against the Government. Consequently, the lower court allowed the plaintiff-relator’s otherwise untimely qui tam FCA claim to proceed on the merits against defendants Halliburton Company, KBR, Inc., Kellogg Brown & Root Services, Inc., and Service Employees International, Inc. (collectively “KBR”).
Since the vast majority of claims under the FCA are brought as civil claims initiated by qui tam plaintiffs, the Fourth Circuit’s extension of the Suspension Act to civil as well as criminal cases under the FCA would likely have had enormous consequences for companies doing business with the federal government if it had been upheld by the Supreme Court.
NELF submitted an amicus brief in support of KBR, arguing that the Fourth Circuit had erred and showing, based on an extensive analysis of the Suspension Act’s legislative history, the source of its mistake. The lower court had misunderstood a crucial part of the Suspension Act’s statutory history. Prior versions of the Suspension Act, enacted in 1921 and 1942, had applied to offenses that were “now indictable under existing statutes.” I.e.,i.e, their coverage was retrospective only, applying to crimes, still timely, that had already occurred when those 1921 and 1942 statutes took effect. In 1944, however, Congress, made the Suspension Act prospective as well, by deleting the phrase “now indictable under existing statutes.” However, the Fourth Circuit, along with virtually every other court and commentator, misinterpreted this 1944 amendment. In particular, the lower court concluded that Congress’ removal of the phrase “now indictable” in 1944 expanded the meaning of the word “offenses” to include non-indictable, civil claims. NELF demonstrated compellingly that, to the contrary, when Congress removed the phrase “now indictable” in 1944, it simply extended the Suspension Act to future offenses of contractor fraud. (Congress also preserved other language in the 1944 Suspension Act to make it clear that the 1944 statute applied to past timely offenses as well.) By no means did the 1944 amendment affect in any way the exclusively criminal meaning of the word “offense.”
In its unanimous decision issued on May 26, 2015, the Supreme Court agreed with NELF’s arguments in the case. In an opinion that largely parallels NELF’s brief, the Court held that the Act only applies to criminal offenses under the FCA.