United States of America ex rel. Benjamin Carter v. Halliburton Co.

Appellant Benjamin Carter appeals the district court's dismissal

of his complaint with prejudice. The matter was initiated

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 Company;

KBR, Inc.; Kellogg Brown & Root Services, Inc.; and

Service Employees International, Inc. (collectively

KBR)—alleged fraudulent billing of the United States for services

provided to the military forces serving in Iraq. The district

court concluded that it lacked subject matter jurisdiction

over Carter's claims because of the False Claims Act's firstto-

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 nonintervened

qui tam cases. Accordingly, the district court dismissed

Carter's complaint with prejudice. Because we conclude

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



2 UNITED STATES v. HALLIBURTON CO.



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 private

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 Government"

in violation of 31 U.S.C. § 3729(a)(2).



KBR provided logistical services to the United States military

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 purifying

water during the time period but was repeatedly misrepresenting

to the United States that it was. Carter submits that

water purification did not actually begin until May 2005. Further,

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



UNITED STATES v. HALLIBURTON CO. 3



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. Halliburton

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 transferred

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 Carter'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 government,

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,



4 UNITED STATES v. HALLIBURTON CO.



2005). Thorpe also alleges that KBR's standard operating procedure

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, reasoning

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.,



UNITED STATES v. HALLIBURTON CO. 5



No. 11-cv-602 (E.D. Va. filed June 2, 2011). The district

court unsealed the complaint on August 24, 2011. The complaint

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 Government,

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 during

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 operations

in Iraq and elsewhere. Duprey was subsequently voluntarily

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



6 UNITED STATES v. HALLIBURTON CO.



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 dismissed

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 pursuant

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 relating

to criminal fraud offenses against the United States during



UNITED STATES v. HALLIBURTON CO. 7



times of war. Wartime Enforcement Fraud Act of 2008, S.

Rep. No. 110-431, at 2. When enacted, the law applied to "offenses

involving the defrauding or attempts to defraud the

United States . . . and now indictable under any existing statutes."

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 country

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 President

or by a concurrent resolution of Congress.')." United

States v. Pfluger, 685 F.3d 481, 483 (5th Cir. 2012) (alterations

in original) (quoting 18 U.S.C. § 3287)). The Supreme

Court has held that the WSLA applies only to offenses committed

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 Congress.

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



8 UNITED STATES v. HALLIBURTON CO.



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 amendments

of 2008. Additionally, courts are in conflict as to

whether the pre-amendment WSLA requires a formal declaration

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 postamendment

WSLA because it believes that the postamendment

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 construction,

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 extraordinary

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 quotation

marks omitted). In interpreting a statute we "must presume

that a legislature says in a statute what it means and



UNITED STATES v. HALLIBURTON CO. 9



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 unambiguous

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 "declared

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 authorize

physical searches without a court order . . . to acquire foreign

intelligence information for a period not to exceed 15

calendar days following a declaration of war by the Congress.").



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 campaigns

resulting in enormous expense and widespread bloodshed

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,



10 UNITED STATES v. HALLIBURTON CO.



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 detention

of enemy combatants during conflicts is an incident of

the rules of war). Surely these circumstances result in situations

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 recognition

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 terminated.

The Fifth Circuit recently considered this issue in

Pfluger. 685 F.3d 481. There the court determined that termination

clause of the WSLA required compliance with the formal

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 formalities

have been met. In the pre-amendment WSLA, termina-



UNITED STATES v. HALLIBURTON CO. 11



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 meaning

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 indictable"

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.,



12 UNITED STATES v. HALLIBURTON CO.



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 criminal

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 limiting

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 history

persuasive, we find that the WSLA applies to civil

claims.



D.



The district court found that even if the WSLA was applicable

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 statute

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 specifically

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." Sanders,

546 F.3d at 294 (quoting § 3731(b)(2)). The court reasoned:

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



UNITED STATES v. HALLIBURTON CO. 13



'facts material to the right of action' because that

particular knowledge notifies the government that it

has an actionable FCA claim. But applying the statute'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 irrelevant

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 omitted).

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 incorrect.

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.



14 UNITED STATES v. HALLIBURTON CO.



IV.



We next consider KBR's argument that the FCA's first-tofile

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 Beecham

Clinical Labs., Inc., 149 F.3d 227, 233 (3d Cir. 1998).



To reconcile these conflicting goals, the FCA has placed jurisdictional

limits on its qui tam provisions, including

§ 3730(b)(5)'s first-to-file bar and § 3730(e)(4)'s public disclosure

provision.



Under the first-to-file bar, if Carter's claims had been previously

filed by another relator, then the district court lacked

subject matter jurisdiction. By the same token, the public disclosure

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 firstto-

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



UNITED STATES v. HALLIBURTON CO. 15



section provides that "[w]hen a person brings an action under

[the FCA], no person other than the Government may intervene

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 Walburn

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 variations

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 different

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



16 UNITED STATES v. HALLIBURTON CO.



quotation marks omitted). We find our sister circuits' reasoning

persuasive, and we join these circuits in adopting the "material

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 unpersuaded

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 elements

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 preventing

parasitic qui tam lawsuits would not be furthered if all



UNITED STATES v. HALLIBURTON CO. 17



three actions were allowed to proceed on the same essential

claims.



D.



Carter argues that regardless of the relatedness of his complaint

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, Carter'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 voluntarily

dismissed in March 2012, when the government declined

to intervene. Therefore, both actions were pending when Carter

filed his complaint on June 2, 2011. Because we look at

the facts as they existed when the claim was brought to determine

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 longer

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



18 UNITED STATES v. HALLIBURTON CO.



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-tofile

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 dismissal

with prejudice. And, as we have already concluded the

district court erred in dismissing Carter's complaint with prejudice.



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 allegations.

KBR alleges that Carter was not the original source



UNITED STATES v. HALLIBURTON CO. 19



of the information, and that he gathered the information from

another KBR employee. The district did not reach this argument,

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 alternative

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 separately

to address what appears to be the heart of the dissent's

objections: that applying the Wartime Suspension of Limitations

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 Congress's

clearly expressed policy decisions, I respectfully disagree

with the dissent.



When interpreting a federal statute, the "cardinal rule . . .

is that the intent of [Congress] is to be given effect." NLRB



20 UNITED STATES v. HALLIBURTON CO.



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 Suspension

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 determinations,

the dissent relies on strained readings of the Wartime

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 government

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-



UNITED STATES v. HALLIBURTON CO. 21



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 reasoned

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 inapposite

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 limitations

periods set out in both statutes. In particular, the dissent

notes that



[b]y the terms of the [Wartime Suspension of Limitations

Act], the government is solely entitled to

invoke and terminate the tolling provisions of the

statute . . . . The private qui tam plaintiff has no connection

with these decisions and it seems odd to conclude

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 Suspension

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 tertiary

consideration in Congress's decision to declare war or



22 UNITED STATES v. HALLIBURTON CO.



authorize the use of military force, and thus there is only a de

minimus relationship between the government conduct discussed

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 interpretations:

Not every silence is pregnant. In some cases, Congress

intends silence to rule out a particular statutory

application, while in others Congress' silence signifies

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 congressional

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



UNITED STATES v. HALLIBURTON CO. 23



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 Limitations

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



24 UNITED STATES v. HALLIBURTON CO.



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 interpretations

when it amended the Wartime Suspension of Limitations

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 ambiguity

into the plain language of the statute is persuasive. Therefore,

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 concerns

highlighted by the dissent—that our decision will "extend

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 justified.



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 otherwise

engaged in a military conflict. 18 U.S.C. § 3287. Moreover,

even if the informal nature of modern military conflicts

renders the limitations period established by the Wartime Suspension

of Limitations Act somewhat less definite, it is within

Congress's purview to determine that certain conduct is sufficiently

egregious—such as defrauding the government during

a time of war—that an extended or indefinite limitations



UNITED STATES v. HALLIBURTON CO. 25



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 relators

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 dismissed

under either of these two provisions.



In sum, the majority correctly concludes that the plain language

of the Wartime Suspension of Limitations Act unambiguously

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 unambiguous

language of the Wartime Suspension of Limitations Act,

that the tolling applies to "any offense." See Jerman v. Carlisle,

McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573,

130 S.Ct. 1605, 1624 (2010) ("To the extent Congress is persuaded

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-



26 UNITED STATES v. HALLIBURTON CO.



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 Service

Employees International (collectively "KBR"). However,



I do not agree with the holding in the majority opinion, principally

section III D, that the Wartime Suspension of Limitations

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 dissent

from the majority opinion insofar as it would allow Carter

to proceed on those of his claims that fall outside the sixyear

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 violations

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-



__________________________________________



1Carter 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.



UNITED STATES v. HALLIBURTON CO. 27



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 limitations

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 concludes

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 limitations

applicable to any offense (1) involving fraud

or attempted fraud against the United States or any

agency thereof in any manner, whether by conspiracy

or not, or (2) committed in connection with the

acquisition, care, handling, custody, control or disposition

of any real or personal property of the United

States, or (3) committed in connection with the



_________________________________________



2In 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 tolling

claim was improperly before the court, the district court alternatively

held that "Carter cannot show that the instant suit is untimely due to circumstances

external to his own conduct, and equitable tolling is inappropriate."

(J.A. 620 n.11). I agree with the district court that equitable tolling

is unavailable to Carter.



3Because 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.



28 UNITED STATES v. HALLIBURTON CO.



negotiation, procurement, award, performance, payment

for, interim financing, cancelation, or other termination

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 inventory

by any war contractor or Government agency,

shall be suspended 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. 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. § 3287.4



Carter 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 payment.

Accordingly, Carter posits (and the majority opinion

agrees) that the WSLA precludes KBR from asserting the



_________________________________________



4The majority opinion does not reach the question of whether the preor

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.



UNITED STATES v. HALLIBURTON CO. 29



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



30 UNITED STATES v. HALLIBURTON CO.



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 agencies

at prices in excess of limitations set by Congress during

World War II. Although the allegedly illegal sales were conducted

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) (Murnaghan,

J., concurring in part and dissenting in part) ("To reach

out and decide what need not be decided is frequently denigrated

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-



UNITED STATES v. HALLIBURTON CO. 31



(1) more than 6 years after the date on

which the violation of [the FCA] is committed,

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 circumstances,

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 relator.

Id. at 294. In support of this holding we reasoned that "applying

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 limitations

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 benefit

of the government. It noted that extending the limitations

period for up to 10 years (the outer limit provided by



32 UNITED STATES v. HALLIBURTON CO.



§ 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 cannot

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 contrary

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 statute

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 controlled

actions of the United States government: declaration of

war or congressional authorization for use of military force

(to trigger) and congressional resolution or Presidential proclamation

(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,



UNITED STATES v. HALLIBURTON CO. 33



should be entitled to the same limitations period as the necessary

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 legislative

history: again, an odd basis upon which to extend the

tolling of a statute of limitations which is to be strictly construed.

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



34 UNITED STATES v. HALLIBURTON CO.



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 terminated

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 statute

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 occurring

'under the stress of present-day events' of the war.").



In other words, the Court recognized that the primary concern

motivating Congress in passing the WSLA was the ability

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 evident

in the WSLA's legislative history.



During normal times the present 3-year statute of

limitations may afford the Department of Justice sufficient

time to investigate, discover, and gather evidence

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



UNITED STATES v. HALLIBURTON CO. 35



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 discover

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 Government

is also busily engaged in its many duties,

including the enforcement of the espionage, sabotage,

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 entities

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



36 UNITED STATES v. HALLIBURTON CO.



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, sabotage,

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, Congress

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 legislating."

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 mention

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 indiscriminately

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



UNITED STATES v. HALLIBURTON CO. 37



the WSLA would extend the limitations period for his actions

well into the next decade at least, depending on the date hostilities

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 mission

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 allegedly

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 limitations

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 precedent.



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 context

of FCA actions. As Sanders explained, a lengthy limita-



_______________________________________________________



5It 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.





6The 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 Congress,

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.



38 UNITED STATES v. HALLIBURTON CO.



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 potential

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 indefinite

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 exigencies

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



UNITED STATES v. HALLIBURTON CO. 39



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 misreading

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.



40 UNITED STATES v. HALLIBURTON CO.

For the foregoing reasons we reverse the district court’s

dismissal of Carter’s complaint. Rather than address the alternative

ground of the public disclosure bar for the first time on

appeal, we remand this issue to the district court for further

consideration.