In 2019, the First Circuit decided United States ex rel. McGuire v. Millenium Laboratories., Inc. (Millenium Labs), holding that the “first-to-file” rule of the False Claims Act (FCA) is a nonjurisdictional—rather than a jurisdictional—bar on later-filed actions.1923 F.3d 240, 248 (1st Cir. 2019), cert. denied, 140 S. Ct. 851 (2020). And last year, the Third Circuit joined this position with its holding in In re Plavix Marketing, Sales Practices and Products Liability Litigation (No. II).2United States ex rel. JKJ P’ship 2011 L.P. v. Sanofi-Aventis U.S. L.L.C. (In re Plavix Mktg., Sales Practices & Prods. Liab. Litig. (No. II), 974 F.3d 228, 232 (3d Cir. 2020). While these decisions might have been against the weight of national authority, this Note argues that they were not against the growing consensus about the rule, the purpose of the FCA, and, most importantly, the First and Third Circuits’ own FCA jurisprudence. Instead, this Note argues that the circuits’ recent FCA decisions show that they and others have remembered the purpose of the FCA: to encourage private attorneys general to bring claims on behalf of the government.
Part I of this Note will discuss the history and development of the FCA, including its original purpose and modern use, why Congress added the first-to-file rule, and how the provision traditionally operated to bar later-filed claims. Part II will discuss the First and Third Circuits’ case law and overall jurisprudence regarding the first-to-file rule. It will also illustrate the First and Third Circuits’ FCA jurisprudence as a whole by looking to how the First and Third Circuits decided certain other issues arising under or related to the FCA. Part III will then discuss the factors that led to the circuits’ decisions in Millenium Labs and In re Plavix Marketing. This includes a mix of both external factors—like the rulings of other circuits—and internal factors, like the First and Third Circuits’ jurisprudence: their continued leniency in cases involving the FCA and their case law signaling the eventual recharacterization of the rule as nonjurisdictional. Part IV will briefly extract some lessons that these decisions can teach about what to look for in determining how a circuit might interpret the rule going forward, and based on these, predict that the Ninth Circuit will soon join these circuits in holding that the rule is nonjurisdictional. The Note will ultimately conclude that the decisions were simply a product of the First and Third Circuits’ FCA case law and the fact that federal courts should be more lenient on plaintiffs bringing claims under the FCA.