United States v. Cellco Partnership

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 26, 2013 Decided April 11, 2014

No. 12-7133

UNITED STATES OF AMERICA, EX REL. STEPHEN M. SHEA,
APPELLANT

v.

CELLCO PARTNERSHIP, DOING BUSINESS AS VERIZON
WIRELESS, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01050)

Christopher Mead argued the cause for appellant. With him
on the briefs was Mark London.

Seth P. Waxman argued the cause for appellees. On the
brief were Randolph D. Moss and Brian M. Boynton.

John P. Elwood, Eric A. White, Rachel L. Brand, and Steven
P. Lehotsky were on the brief for amicus curiae The Chamber of
Commerce of the United States of America in support of
appellees.

Before: SRINIVASAN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
 2

Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

Opinion concurring in part and dissenting in part filed by
Circuit Judge SRINIVASAN.

SENTELLE, Senior Circuit Judge: Relator Stephen M. Shea,
on behalf of the United States, appeals the district court’s
dismissal of his qui tam complaint for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The
district court held that a complaint Shea had earlier filed barred
its consideration of this complaint under the first-to-file rule of
the federal False Claims Act (“FCA”), 31 U.S.C. § 3730(b)(5).
We affirm the district court. We hold that this complaint is
sufficiently related to Shea’s earlier action, that the first-to-file
bar applies to Shea even though he brought the first action, and
that the bar remains in effect even after the first action is no
longer pending.

I. BACKGROUND

A. Verizon I

On January 16, 2007, Stephen M. Shea filed a complaint on
behalf of the United States government against Verizon (Verizon
I) under the qui tam provisions of the FCA, 31 U.S.C.
§§ 3729–3732. The FCA authorizes private parties (“relators”)
to bring false claims actions in the name of the United States,
and to recover a portion of the proceeds of the action if
successful. See id. § 3730(b), (d).

Shea’s 2007 complaint alleged the submission of false
claims by Verizon. More specifically, the complaint contained
the following allegations: (1) that Verizon made “knowing
submission to the United States of certain prohibited surcharges
 3

under contracts to provide telecommunications services” to the
General Services Administration (“GSA”); (2) that Shea is a
telecommunications consultant; (3) that Shea based his
allegations on experience with Verizon’s alleged practice of
“billing corporate clients not only for federal, state and local
taxes levied on the customer but also for surcharges (often
labeled as, or lumped together with, taxes) that were added to
bills . . . to inflate . . . revenue,” 2007 Complaint ¶¶ 2, 12; (4)
that Verizon used “the same billing platform” for both business
customers and the United States, 2007 Complaint ¶¶ 6, 81; (5)
that through this practice, Verizon charged the government
“Federal, State, and local taxes and duties” contrary to Federal
Acquisition Regulations (“FAR”), FAR 52.229-4(b), 48 C.F.R.
52.229–4(b), 2007 Complaint ¶ 20; and (6) that Shea became
aware of the alleged conduct through an internal document he
received in 2004 which listed “the taxes and surcharges that the
Federal Government is responsible for.” 2007 Complaint ¶ 70.
The United States intervened in Verizon I, and in February 2011,
the parties settled the case without admission of liability. Shea
received nearly $20 million for his role in the litigation.

B. Verizon II

Shea filed the present second qui tam action against Verizon
(Verizon II) on June 5, 2009, and on September 12, 2012 filed
a Second Amended Complaint (“SAC”). The SAC closely
mirrors Shea’s complaint in Verizon I: (1) it too alleges a
scheme by Verizon “to defraud the United States by knowingly
billing the government for non-allowable surcharges,” SAC ¶ 1;
(2) it traces Shea’s knowledge to “his experience consulting
with large commercial telecommunications customers” through
which he “learned that most telecommunication carriers,
including . . . Verizon . . . had a custom and practice of charging
[Non-Allowable Charges],” SAC ¶ 3; (3) it identifies the same
2004 document as the source of his information, SAC ¶ 4; and
 4

(4) it alleges that Verizon “overcharged the United States, just
like its commercial customers” by billing non-allowable charges
on several government contracts. SAC ¶¶ 4, 28. The only
difference between the 2007 Complaint and the SAC is that the
SAC expands Shea’s allegations to more contracts, more
charges, and more governmental agencies.

C. Procedural History

On November 15, 2012, the district court dismissed Shea’s
complaint for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1). U.S. ex rel. Shea v. Verizon
Bus. Network Servs. Inc., 904 F. Supp. 2d 28, 37 (D.D.C. 2012).
The court held that under the FCA’s first-to-file bar, Shea’s
complaint in Verizon I barred the court’s consideration of his
complaint in Verizon II. The first-to-file bar 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).

The district court concluded that Verizon II was barred
because it alleged “a fraudulent scheme the government already
would be equipped to investigate” based on the complaint in
Verizon I. Shea, 904 F. Supp. 2d 28 at 36 (quoting United States
ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1209 (D.C. Cir.
2011)). Shea argued that dismissal under the first-to-file bar
should be without prejudice, because Verizon I was no longer
pending when the court disposed of Verizon II; thus, Shea urged,
he should be able to re-file his action. The district court
disagreed. This appeal followed.
 5

II. ANALYSIS

Shea raises three arguments on appeal: (A) the district
court erred in finding Verizon I and Verizon II related because
they involve different contracts and different agencies; (B) the
district court improperly held that the first-to-file bar applies to
Shea even though he was the relator in both actions; and (C) the
district court erred in dismissing Verizon II with prejudice
because Verizon I was no longer pending when Shea filed his
second amended complaint in Verizon II.

Reviewing the dismissal for lack of jurisdiction de novo, see
Batiste, 659 F.3d at 1208, we agree with the district court that
this complaint is “related”—within the meaning of the FCA—
to Shea’s earlier action, that the first-to-file bar applies to Shea
even though he brought the first action, and that the bar remains
effective even after the first action is no longer pending.

A. Same Material Elements of Fraud

Under the first-to-file bar, “[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). A second action
is “related” if it incorporates “the same material elements of
fraud” as the earlier-filed action. U.S. ex rel. Hampton v.
Columbia/HCA Healthcare Corp., 318 F.3d 214, 217 (D.C. Cir.
2003). “[T]wo complaints need not allege identical facts for the
first-filed complaint to bar the later-filed complaint.” Batiste,
659 F.3d at 1208. Instead, later actions are barred where the
first would have “suffice[d] to equip the government to
investigate” the fraud alleged in the later action. Id. at 1209.
 6

Shea argues that Verizon I and Verizon II are unrelated. He
seizes on language in Batiste, where we noted that one aspect of
the relatedness inquiry goes to whether the second complaint
would “give rise to a different investigation or recovery” than
the first. Batiste, 659 F.3d at 1210. As Shea notes, Verizon II
includes agencies, contracts, and charges not included in Verizon
I. These differences would necessitate further investigation,
and—were Shea successful—result in additional recovery.
Because Verizon II would give rise to a different investigation
and further recoveries, he contends, the actions are not related.
We are unconvinced.

On Shea’s reasoning, two complaints would have to be
identical in order to be “related.” After all, any difference in any
aspect of a later complaint could result in some “different
investigation or recovery.” Cf. Batiste, 659 F.3d at 1210.
Relatedness is broader than identity. As we noted in Batiste, the
first-to-file rule serves two purposes: “rejecting suits which the
government is capable of pursuing itself,” and “promoting those
which the government is not equipped to bring on its own.” Id.
at 1208 (quoting Hampton, 318 F.3d at 217). A side-by-side
comparison shows that Verizon II is precisely the kind of action
barred under this standard.

Both complaints claim that Shea discovered the alleged
scheme based on his experience as a telecommunications
consultant. See 2007 Complaint ¶ 12; SAC ¶ 3. Both
complaints trace Shea’s knowledge to the same billing document
he received in 2004. 2007 Complaint ¶ 70; SAC ¶ 4. Both
complaints allege that Verizon billed the U.S. government with
the same system it used for commercial customers. 2007
Complaint ¶ 81; SAC ¶ 27. And both allege that through this
system Verizon billed the U.S. government prohibited
surcharges. 2007 Complaint ¶ 20; SAC ¶ 4. In point of fact,
Verizon II is indistinguishable from Verizon I except as to its
 7

scope. Yet the allegations and legal theory of Verizon I would
alert the government to the possibility of a fraudulent scheme
that went beyond the specifics of Verizon I. Shea’s allegations
centered on Verizon’s “uniform billing practices,” through
which it overcharged the government and corporate clients alike.
2007 Complaint ¶¶ 6, 81. Presumably, if Verizon’s billing
practice was truly uniform, it was so as to all government
contracts, not just the GSA.

Under Batiste, these complaints allege the same fraudulent
scheme. See Batiste, 659 F.3d at 1209. Verizon I would suffice
to equip the government to investigate Shea’s expanded
allegations in Verizon II. See id. The district court properly
held that Shea’s second complaint was “related” to the first
within the terms of the FCA’s first-to-file bar.

B. Same Relator

Shea’s second argument goes to the identity of the relator.
Shea argues that the first-to-file bar applies only to litigants
other than the relator who filed the original action. His
argument runs as follows: The first-to-file bar prohibits
subsequent relators from “intervene[ing] or bring[ing] . . .
action[s]” related to a previously-filed action. 31 U.S.C.
§ 3730(b)(5). It would be nonsense, he argues, for a litigant to
intervene in an action he himself brought. And because it would
be nonsense for a relator to intervene in his own suit, “no
person” in the statute cannot logically refer to the same
relator—in fact, it must be understood to mean “no person other
than the original relator.” We disagree.

The text of the statute clearly directs that “no person” is
allowed to bring a related suit. “[C]ourts must presume that a
legislature says in a statute what it means and means in a statute
what it says there.” Conn. Nat. Bank v. Germain, 503 U.S. 249,
 8

253–54 (1992). And it is not nonsense to disallow all
persons—the original relator included—from bringing a related
action. The statute is written in the disjunctive. A second
relator need not be capable of both forms of prohibited behavior
to be eligible for the prohibition. On Shea’s reasoning, a statute
that provided that “no vehicles may fly over or drive through a
field” could only apply to vehicles that could both fly and drive.
No rule of grammar, logic, or the law compels such a reading.

Nor are Shea’s policy arguments persuasive. Shea rightly
points out that one purpose of the first-to-file bar is to encourage
“whistleblowers to approach the government and file suit as
early as possible.” See United States ex rel. Ortega v. Columbia
Healthcare, Inc., 240 F. Supp. 2d 8, 12 (D.D.C. 2003). As he
notes, a litigant cannot race himself to the courthouse or divide
a bounty with himself. But Shea again ignores the other
purpose: “rejecting suits which the government is capable of
pursuing itself.” Batiste, 659 F.3d at 1208. The plain-text
reading of the statute advances both goals. We therefore reject
Shea’s argument that the first-to-file bar does not apply to an
original relator.

C. Dismissal with Prejudice

Finally, Shea argues that the district court erred in
dismissing his claim with prejudice. Shea reads the first-to-file
bar as a temporal limit on related suits. So long as the first
action is no longer pending, Shea reasons, the second action is
not barred. Verizon, supported by the Chamber of Commerce
of the United States of America as amicus curiae, urges us to
read “pending action” in the statute as shorthand for “first-filed
action.” Thus, a related action is barred regardless of the
posture of the first-filed action. We agree with Verizon.
 9

Shea makes two arguments for his reading. First, he argues
that had Congress intended the bar to continue into perpetuity it
could have done so by omitting the term “pending.” Verizon’s
interpretation would actually make more sense, he contends, had
the statute read, “[w]hen a person brings an action under [the
FCA], no person . . . may . . . bring a related action based on the
facts underlying the . . . action.” 31 U.S.C. § 3730(b)(5).
Second, Shea argues that we have suggested support for his
reading in the past. In Batiste, for instance, we characterized
“[t]he command [as] simple: as long as a first-filed complaint
remains pending, no related complaint may be filed.” 659 F.3d
at 1210.

The language Shea quotes from Batiste is dicta. There, the
second relator (Batiste) also argued that because the first
relator’s (Zahara’s) complaint was dismissed before his, “his
complaint should not have been dismissed with prejudice.”
Batiste, 659 F.3d at 1211. But the first action “was dismissed
eighteen months prior to the Batiste dismissal.” Id. “During
that time, Batiste never asked for leave to amend his complaint
in the district court.” Id. Thus, we held, Batiste “waived his
opportunity to file a new suit on the same grounds . . . .” Id.
Today we must resolve the question not reached in Batiste. We
hold that the first-to-file bar applies even if the initial action is
no longer pending, because we read the term “pending” in the
statutory phrase “pending action” to distinguish the earlier-filed
action from the later-filed action. Several points support this
reading.

First, as Verizon points out, Shea’s reading actually
supplements the plain text. Shea reads the bar as if it provided
that “when a person brings an action under this subsection, no
person other than the Government may intervene or bring a
related action while the first action remains pending.” But this
is not what the statute says. Instead it makes clear that the bar
 10

commences “when a person brings an action under this
subsection,” and thence forth bars any action “based on the facts
underlying the pending action.” The simplest reading of
“pending” is the referential one; it serves to identify which
action bars the other.

Second, Congress could have expressed its intent to make
the first-to-file bar temporal, as it has done in other contexts.
For instance, Congress has barred “any claim [in the Court of
Federal Claims] for . . . which the plaintiff . . . has pending in
any other court any suit or process against the United States
. . . .” 28 U.S.C. § 1500 (emphasis added); see also 42 U.S.C.
§ 300aa-11(a)(5)(B) (precluding a person from bringing a
vaccine-related claim in the Court of Federal Claims if he or she
“has pending a civil action for damages for a vaccine-related
injury or death” (emphasis added)). Congress excluded similar
language in the first-to-file bar.

Finally, our reading better suits the policy considerations
undergirding the statute. See Batiste, 659 F.3d at 1208. The
resolution of a first-filed action does not somehow put the
government off notice of its contents. On the other hand,
reading the bar temporally would allow related qui tam suits
indefinitely—no matter to what extent the government could
have already pursued those claims based on earlier actions.
Such duplicative suits would contribute nothing to the
government’s knowledge of fraud. And Shea has forwarded no
reason why the rule should be read to bar a related claim one
day but not the next. Accordingly, we reject Shea’s argument
that the first-to-file bar represents a temporal limit on related
actions. The district court did not err in dismissing Verizon II
with prejudice.

Appellant has pointed out that three of our sibling circuits
have reached the opposite conclusion on the construction of the
 11

word “pending.” Of course the decisions of other circuits are
not binding upon us, but we have nonetheless reviewed those
decisions respectfully and conclude that none of them convinces
us of a construction other than the one we reach today. The
Seventh Circuit, in United States ex rel. Chovanec v. Apria
Healthcare Grp., Inc., 606 F.3d 361 (7th Cir. 2010), only states
the conclusion that “[a]s we explained above . . . § 3730(b)(5)
applies only while the initial complaint is ‘pending.’” Id. at 365.
The explanation “above” is likewise a conclusory statement that
“no one other than the Government may ‘bring a related action’
while the first is ‘pending.’” Id. at 362. We do not mean to
disparage the opinion of the Seventh Circuit, but note that the
issue of focus in the Chovanec litigation was the relatedness of
the actions rather than the meaning of pendency. The references
to the necessity of pendency are more dicta than holding.

Similarly, the Tenth Circuit, in In re Natural Gas Royalties
Qui Tam Litigation, 566 F.3d 956 (10th Cir. 2009), does refer to
“[t]he fact that § 3730(b)(5) applies only when another qui tam
action is ‘pending’ . . . .” Id. at 963. However, this statement is
pure dicta and is unaccompanied by any reasoning as to the
construction of the term “pending.”

Only the Fourth Circuit actually seems to have given
consideration to the meaning of “pending” as a controlling issue
in a case before it. While that circuit has considered the
question twice, the second opinion, United States ex rel. May v.
Purdue Pharma L.P., 737 F.3d 908, 920 (4th Cir. 2013), relies
on the first, United States ex rel Carter v. Halliburton Co., 710
F.3d 171, 182-83 (4th Cir. 2013). Carter, in turn, relies on the
Tenth Circuit decision in Natural Gas Royalties without directly
comparing the two conflicting constructions of “pending,” as we
do today. For the reasons set forth above, we will respectfully
disagree with the other circuits.
 12

III. CONCLUSION

For the reasons set forth above, we affirm the district
court’s dismissal of the complaint.

So ordered.
 SRINIVASAN, Circuit Judge, concurring in part and
dissenting in part: I agree with the majority that the relator’s
present action is “related” to his prior action for purposes of the
False Claims Act’s first-to-file bar, 31 U.S.C. § 3730(b)(5). I
also agree that the terms of the first-to-file bar encompass
situations in which the same relator files a later, related
complaint rather than amending his initial one. I therefore
concur in the court’s decision that the complaint in this case
must be dismissed under the first-to-file bar.
I respectfully disagree with the majority, however, on
whether the first-to-file bar persists even after the initial action
concludes. The other courts of appeals to consider the question
have determined—correctly, in my view—that the bar operates
only while the first action remains “pending.” Id. The terms of
the statute require that conclusion. Because here, the first action
is no longer “pending,” the first-to-file bar should pose no
continuing obstacle to the filing of a subsequent action. The
proper disposition thus should be to dismiss the complaint
without prejudice rather than with prejudice.
I.
I initially note a jurisdictional issue that the parties do not
discuss or raise: whether the first-to-file bar goes to the courts’
subject-matter jurisdiction. See Sebelius v. Auburn Reg’l Med.
Ctr., 133 S. Ct. 817, 824 (2011) (setting forth framework “for
determining whether to classify a statutory limitation as
jurisdictional”). The district court dismissed the action under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject-
matter jurisdiction, and the majority now affirms that
disposition. The court’s affirmance, however, should not be
understood as a holding that the first-to-file bar is a
jurisdictional limitation. This court can affirm a dismissal even
if it was mistakenly granted under Rule 12(b)(1) for lack of
jurisdiction instead of under Rule 12(b)(6) for failure to state a
claim on the merits. See Morrison v. Nat’l Austl. Bank Ltd., 130
S. Ct. 2869, 2876-77 (2010); Sierra Club v. Jackson, 648 F.3d
 2

848, 854 (D.C. Cir. 2011). Today’s affirmance of the district
court’s dismissal for lack of jurisdiction thus establishes no
circuit precedent on whether the first-to-file bar in fact is
jurisdictional. Cf. United States ex rel. Batiste v. SLM Corp.,
659 F.3d 1204, 1205-06 (D.C. Cir. 2011) (affirming Rule
12(b)(1) dismissal under first-to-file bar).
This case does not require a definitive resolution of the
jurisdictional or nonjurisdictional character of the first-to-file
bar. It might appear at first blush that we do need to resolve the
issue for reasons having to do with the relationship between the
False Claims Act’s first-to-file and public-disclosure bars. At
the time of the complaint, the public-disclosure bar expressly
sounded in jurisdictional terms. See 31 U.S.C. § 3730(e)(4)(A)
(2006); Rockwell Int’l Corp. v. United States, 549 U.S. 457,
467-70 (2007). While the provision has since been amended to
remove its express jurisdictional language, see United States ex
rel. May v. Purdue Pharma L.P., 737 F.3d 908, 916-17 (4th Cir.
2013) (holding that 2010 amendments to public-disclosure bar
now render the provision nonjurisdictional), the version of the
public-disclosure bar in effect at the time of the complaint
presumably governs. See Graham Cnty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct.
1396, 1400 n.1 (2010). It might then seem that the court would
need to resolve the jurisdictional status of the first-to-file bar at
the threshold: if the first-to-file bar is a nonjurisdictional
limitation, perhaps the court would need to confirm its
jurisdiction under the public-disclosure bar before considering
the applicability of the first-to-file bar. See generally Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (court
must assure itself of its jurisdiction before addressing the
merits). This court, though, has held that the requirement to
confirm jurisdiction at the outset controls “only when the
existence of Article III jurisdiction is in doubt,” such that the
court may leave an issue of statutory—as opposed to Article
III—jurisdiction undecided while proceeding to consider a
 3

nonjurisdictional ground. Chalabi v. Hashemite Kingdom of
Jordan, 543 F.3d 725, 728 (D.C. Cir. 2008) (emphasis in
original). The pertinent version of the public-disclosure bar at
most established a statutory jurisdictional limitation, not an
Article III limitation. There is thus no requirement to decide
whether the first-to-file bar is jurisdictional before examining
that provision’s applicability. For present purposes, it suffices
to note that today’s decision leaves the provision’s jurisdictional
or nonjurisdictional status unresolved.
II.
Until now, the courts of appeals to address the question
have uniformly concluded that the first-to-file bar applies only
while the first-filed action remains pending. The Fourth Circuit
has held as much, see United States ex rel. Carter v. Halliburton
Co., 710 F.3d 171, 183 (4th Cir. 2013) (“[O]nce a case is no
longer pending the first-to-file bar does not stop a relator from
filing a related case.”), petition for cert. filed, 82 U.S.L.W.
3010-11 (U.S. June 24, 2013) (No. 12-1497), and I read the
Seventh Circuit to have held the same, see United States ex rel.
Chovanec v. Apria Healthcare Grp., Inc., 606 F.3d 361, 365 (7th
Cir. 2010) (“As we explained . . . , § 3730(b)(5) applies only
while the initial complaint is ‘pending.’”). While the majority
characterizes the Seventh Circuit’s discussion of the issue as
“more dicta than holding,” ante, at 11, that court’s determination
that the first-to-file bar applies only to pending actions was
necessary to its decision to vacate the district court’s dismissal
with prejudice and remand for entry of a dismissal without
prejudice. See id.; see also Carter, 710 F.3d at 183 (relying on
Seventh Circuit’s decision in Chovanec). Regardless, the
majority’s reading of the first-to-file bar creates a circuit
conflict, and it also diverges from the carefully considered
dictum of another circuit. See In re Natural Gas Royalties Qui
Tam Litig., 566 F.3d 956, 964 (10th Cir. 2009) (substantially
relying on the “fact that § 3730(b)(5) applies only when another
 4

qui tam action is ‘pending,’” and reiterating that Congress
“limited it to ‘pending’ actions,” such that “if th[e] prior claim
is no longer pending, the first-to-file bar no longer applies”); see
also United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d
1181, 1188 (9th Cir. 2001) (holding that first-to-file bar
prohibits action because it was filed while initial action
remained pending, and assuming that first-to-file bar would not
have applied if initial action was no longer pending).
Respectfully, I believe the understanding of the first-to-file
bar espoused by the other courts of appeals is correct. The terms
of the provision, together with the statutory context and
purposes, point to the same conclusion: the first-to-file bar
effects no permanent prohibition against the bringing of a
subsequent action, but instead ceases to apply once the initial
action is no longer pending.
A.
The first-to-file bar states: “When a person brings an
action under this subsection, 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)
(emphasis added). The provision by its terms bars the bringing
of an action that bears the requisite factual relationship to a
“pending” action, i.e., an action that “[r]emain[s] undecided.”
Black’s Law Dictionary 1248 (9th ed. 2009); see Black’s Law
Dictionary 1021 (5th ed. 1979) (defining “pending” as “[b]egun,
but not yet completed”). Once the initial action is no longer
“pending,” the provision poses no bar to “bring[ing] a related
action.” That is precisely how the Fourth, Seventh, and Tenth
Circuits read the statute. Carter, 710 F.3d at 183; Chovanec,
606 F.3d at 365; Natural Gas Royalties, 566 F.3d at 964.
The majority departs from that straightforward
understanding of the statutory text. According to the majority,
even though the first-to-file bar speaks in terms of a “pending”
 5

action, the provision bars the bringing of a related action
regardless of whether the first action remains “pending.” The
bar then operates in perpetuity. The majority reasons that the
words “pending action” serve as “shorthand for ‘first-filed
action,’” and that the “simplest reading of ‘pending’ is the
referential one; it serves to identify which action bars the other.”
Ante, at 8-10. But there is no great mystery about “which action
bars the other.” The phrase “no person . . . may . . . bring a
related action” already makes clear that the first-filed action bars
the subsequent, “related action,” not the other way around.
What is unclear is the duration of that bar. The word “pending”
answers that question: the bar operates while the first-filed
action remains “pending.” It does not operate thereafter.
Because the statute, without the word “pending,” already
makes plain “which action bars the other,” ante, at 10, the word
“pending” does little work under the majority’s interpretation.
See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a
cardinal principle of statutory construction that . . . , if it can be
prevented, no . . . word shall be superfluous, void, or
insignificant.” (internal quotation marks omitted)). It therefore
is of little help to the majority to reconceive of the statute as if
it contained the words “thence forth.” Ante, at 9-10. Congress
did not include those words; but even if it had, the word
“pending” would still be superfluous. Indeed, not only does
“pending” perform no function under the majority’s
interpretation, but removing “pending” would make the
majority’s interpretation more—not less—acceptable. The
provision would then say: “When a person brings an action
under this subsection, no person . . . may . . . bring a related
action based on the facts underlying the [] action.” That
language speaks more in the nature of a permanent bar than does
the enacted text.
Nor does it significantly advance the majority’s
interpretation to observe that Congress could have used the
 6

phrase, “while the first action remains pending.” Ante, at 9
(emphasis omitted). The words Congress used—“pending
action”—are essentially another way of saying that an “action
remains pending.” The majority also points to other statutes it
believes more clearly bar an action only during the pendency of
a prior action. Ante, at 10. The sole evident difference in
language between the cited provisions and the first-to-file bar is
that the former use the locution, “has pending,” 28 U.S.C. §
1500; 42 U.S.C. § 300aa-11(a)(5)(B), while the latter says,
“pending.” The comparison is of limited utility because the
referenced statutes substantially differ in structure from the first-
to-file bar: “has pending” could not be substituted for “pending”
in the first-to-file bar without significantly rewriting the statute,
so it is difficult to draw meaningful guidance from the fact that
“Congress excluded similar language in the first-to-file bar.”
Ante, at 10. Insofar as the majority means to suggest that
Congress could have gone further than a simple substitution and
instead restructured the provision, one can often imagine an
alternative provision that might have made an already clear
intention even more clear. At any rate, Congress could have
(and presumably would have) simply substituted a different
word—without any need for restructuring—had it in fact
intended to codify the majority’s interpretation that “pending
action” is “shorthand for ‘first-filed action.’” Ante, at 8; see,
e.g., 25 U.S.C. § 1300d-27(b)(2) (“After the filing of a first
action . . . , all other actions . . . shall be consolidated with that
first action.” (emphasis added)). Congress did not do so.
Construing the first-to-file bar to operate only while the
first-filed action remains “pending,” moreover, is in keeping
with the provision’s bar against intervention. The first-to-file
bar states not only that no party may “bring” an action “related”
to the “pending action,” but also that no party may “intervene”
in the existing action. 31 U.S.C. § 3730(b)(5). The prospect of
intervention by nature could arise only while the initial action
remains pending. By linking the prohibition against intervention
 7

with the prohibition against bringing a related action, Congress
enacted a provision generally addressed to the effect of a
pending action: while that action is ongoing, no party (other
than the government) can intervene in it or bring a related
action. Congress did not, however, speak to what happens after
the initial action is no longer “pending.” Cf. 31 U.S.C. §
3730(e)(3) (barring actions during pendency of civil action or
administrative proceeding brought by government and
concerning same allegations or transactions).
B.
The purposes of the first-to-file bar, as well as its operation
within the broader statutory context, reinforce that it applies
only while the initial action remains “pending.” In fact, as
explained below, the majority’s contrary understanding of the
first-to-file bar cannot be squared with the intended operation of
the False Claims Act’s public-disclosure bar.

A central object of the first-to-file bar is “to encourage
whistleblowers to come forward with allegations of fraud.”
Batiste, 659 F.3d at 1210. The provision “creates a race to the
courthouse,” United States ex rel. LaCorte v. SmithKline
Beecham Clinical Labs., Inc., 149 F.3d 227, 234 (3d Cir. 1998)
(internal quotation marks omitted), “encouraging whistleblowers
to come forward by rewarding the first to do so,” Campbell v.
Redding Med. Ctr., 421 F.3d 817, 824 (9th Cir. 2005).

Barring the filing of a subsequent action furthers that
objective while the initial action remains pending, but not
thereafter. If multiple relators “could expect to share a recovery
for the same conduct,” that would “decreas[e] their incentive to
bring a qui tam action in the first place.” LaCorte, 149 F.3d at
234; see Grynberg v. Koch Gateway Pipeline Co., 390 F.3d
1276, 1279 (10th Cir. 2004) (“[O]riginal qui tam relators would
be less likely to act on the government’s behalf if they had to
 8

share in their recovery with third parties who do no more than
tack on additional factual allegations to the same essential
claim.”). The first-to-file bar addresses that concern. The
relator who wins the race to the courthouse need not be
concerned about splitting her award with later-filing relators
because their actions would be barred if brought while her claim
is pending. But the interest in “protecting the spoils of the first
to bring a claim,” Natural Gas Royalties, 566 F.3d at 961,
ceases to operate when her claim is no longer pending. Any
action filed after that point could not affect—or, more to the
point, diminish—her recovery. See 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.”). That is
precisely why the first-to-file bar may sensibly be “read to bar
a related claim one day”—while the initial action is
pending—“but not the next.” Ante, at 10.

The first-to-file bar, as the majority observes, ante, at 10,
also implicates an additional concern of the False Claims Act:
“prevent[ing] copycat actions that do not provide additional
material information to the government.” Batiste, 659 F.3d at
1210. Contrary to the majority’s view, however, reading the
first-to-file bar to apply only while the initial action remains
pending would not “allow related qui tam suits indefinitely.”
Ante, at 10. To begin with, if a related action is dismissed when
filed during the pendency of the initial action, “it often cannot
be refiled—for, once the initial suit is resolved and a judgment
entered (on the merits or by settlement), the doctrine of claim
preclusion may block any later litigation.” Chovanec, 606 F.3d
at 362. Although an individual relator initiates the action, the
plaintiff in a qui tam action is the United States, and claim
preclusion principles may preclude a subsequent suit involving
 9

the same transaction brought by any relator suing on the United
States’s behalf. See id.

Additionally, to the extent a follow-on action sidesteps
claim preclusion (for instance, if the initial action was dismissed
without prejudice), the False Claims Act’s public-disclosure bar,
31 U.S.C. § 3730(e)(4), exists to weed out copycat actions. The
provision of the Act with chief responsibility for that function is
the public-disclosure bar, not the first-to-file bar. To be sure, the
first-to-file “bar does eliminate opportunistic relators,” but
“most of these relators would be eliminated by the public
disclosure bar anyway.” Natural Gas Royalties, 566 F.3d at
963. The “true value” of the first-to-file bar thus “lies in
protecting the recovery of the first relator who files.” Id.

The differing scope of the first-to-file and public-disclosure
bars illuminates their relative roles in addressing copycat suits.
The operation of the first-to-file bar is confined to situations in
which the government gains notice of fraud through the filing of
an initial action under the Act: without a first-filed action, there
is no first-to-file bar. The public-disclosure bar sweeps far more
expansively. It fully applies when the government gains notice
through the filing of a prior action; but it also encompasses
notice to the government through a broad array of additional
means, including federal hearings, reports, and investigations of
all types, as well as publication in the news media. 31 U.S.C. §
3730(e)(4)(A)(i)-(iii). Congress accordingly would have
assumed that its objective of constraining copycat actions would
find primary voice in the public-disclosure bar. There is thus no
need to give the first-to-file bar an unduly broad reading to fend
off “duplicative suits [that] contribute nothing to the
government’s knowledge of fraud.” Ante, at 10. The public-
disclosure bar exists to do exactly that.
 10

The majority’s expansive interpretation of the first-to-file
bar in fact would tend to undermine Congress’s careful
calibration of the public-disclosure bar. While the latter bar
generally prohibits a False Claims Act action if “substantially
the same allegations or transactions” have been “publicly
disclosed,” 31 U.S.C. § 3730(e)(4)(A), Congress intentionally
stopped short of pursuing that objective to the exclusion of all
else. Congress established an exception to the public-disclosure
bar for an action brought by an “original source,” generally an
individual possessing independent knowledge of the subject
matter. Id.; 31 U.S.C. § 3730(e)(4)(B). “Allowing an original
source to bring an action even when the government should be
on notice of the fraud serves the purposes of the [False Claims
Act] by increasing valid enforcement actions.” Natural Gas
Royalties, 566 F.3d at 963. The government might elect to forgo
a valid claim for various reasons, including a lack of resources
to pursue the claim or a lack of adequate evidence in its own
possession. An action by an original source based on her own
independent information would then afford a means by which
the government could obtain some recovery. In that way, the
“original source exception acknowledges that not every relator
whose suit would be barred by the public disclosure bar is a
parasite.” Id.

Under the majority’s interpretation of the first-to-file bar,
however, an action that Congress specifically sought to allow
under the original-source exception would nonetheless be
disallowed under the first-to-file bar. Suppose, for instance, that
an action filed by Relator A alerts the government to an actual
and important instance of fraud but is dismissed for reasons
having nothing to do with the merits; and suppose, further, that
the government elects not to intervene due to a lack of resources.
The original-source exception would permit a related action by
Relator B, an original source with independent information
about the fraud, notwithstanding the public-disclosure bar. But
 11

the majority nevertheless would read the first-to-file bar to
prohibit Relator B’s action in perpetuity. There is no reason to
think that Congress carefully and specifically opened the door
to Relator B’s action via the original-source exception, only to
slam the door shut via the first-to-file bar. By contrast, if the
first-to-file bar is understood to apply only while the initial
action is “pending,” Relator B could thereafter bring an original-
source action, as Congress presumably intended she be free to
do.

Congress, in recent amendments, scaled back the operation
of the public-disclosure bar still further, again in a way that
would be undercut by reading the first-to-file bar to apply in
perpetuity. The public-disclosure bar now allows the
government to veto any dismissal notwithstanding its notice of
the fraud. See 31 U.S.C. § 3730(e)(4)(A) (“The court shall
dismiss an action or claim under this section, unless opposed by
the Government, if substantially the same allegations or
transactions as alleged in the action or claim were publicly
disclosed . . . .” (emphasis added)). The first-to-file bar grants
no such authority to the government. As a result, while
Congress specifically enabled the government to choose to
permit a follow-on action concerning “the same allegations or
transactions” even though it may be on notice of the fraud, the
majority would read the first-to-file bar to prohibit the very
same follow-on action regardless of any desire by the
government to allow it to proceed. But if the first-to-file bar
instead ceases to apply once the first-filed action is no longer
“pending,” the government thereafter could choose to allow a
subsequent action, just as Congress intended. Interpreting the
first-to-file bar to apply only while the initial action remains
“pending,” in short, best harmonizes that provision with the
remainder of the statute.
 12

* * * * *

In my view, the first-to-file bar operates while the first
action is “pending,” but not thereafter. Here, the relator, rather
than amending his complaint, brought a related, second action.
Because his initial action was then pending, the complaint in this
case must be dismissed. But because his initial action no longer
remains pending, the dismissal should be without prejudice to
his later filing a related complaint. Accord Chovanec, 606 F.3d
at 365. Any later action might be subject to dismissal for
reasons yet to be examined, including the public-disclosure bar.
But the first-to-file bar should impose no ongoing prohibition
against the filing of a subsequent complaint.