The Winner Takes it All, but Who Gets to Play? The False Claims Act’s First to File Rule and Jurisdiction

Abstract

In 2019, the United States Court of Appeals for the First Circuit held, in United States v. Millenium Laboratories, Inc., that the False Claims Act’s first to file rule is nonjurisdictional. This decision followed those by the United States Courts of Appeals for the Second and D.C. Circuits that came to the same conclusion. These decisions stand in opposition to a number of other circuits that, prior to 2015, held the first to file rule as jurisdictional. This split emerged after the Supreme Court’s 2015 decision in Kellogg Brown & Root Services v. United States ex rel. Carter, a False Claims Act case where the Court considered the first to file rule after considering other nonjurisdictional items, leading some circuits to infer that the Supreme Court considered the rule nonjurisdictional. In holding the first to file rule nonjurisdictional, the First Circuit followed the Supreme Court’s bright line rule preventing jurisdictional treatment absent clear Congressional intent. This Comment argues that the First Circuit’s treatment of the first to file rule as nonjurisdictional is correct and fulfills the legislative intent of the False Claims Act while still preventing parties from overburdening the judiciary with opportunistic suits.