The Legal Implications of the Annual Presidential Pardon of Turkeys

By Devon Fitzgerald

Throughout the course of his presidency, Barack Obama has been heavily criticized for his use of executive action on immigration, climate change and other items of his policy agenda. He has also come under fire for his abuse of executive power vested in him by Article II, Section 2 of the U.S. Constitution -- the presidential pardon.  

Last November, Sen. Ted Cruz published an op-ed in Politico titled “Obama Is Not a Monarch.” Cruz specifically called into question the president’s use of executive amnesty for immigrants, thinking it to be an over-extension of power. (Politico) In 2013, just a year earlier, The Boston Globe published a piece criticizing the president for not using his pardoning power enough, dubbing it, “One of his most effective tools.” (The Boston Globe)

Meanwhile, in the Office of Legal Counsel, the most talked about legal issue of this week is the presidential pardon as it relates to turkeys.

According to the White House, “Americans have been sending the President turkeys for the holidays since at least the 19th century.” (The White House Blog) Turkey Pardoning is rumored to have begun under Lincoln at the request of his son Tad, but the tradition only became official under President George H.W. Bush. On November 14, 1989, Bush pardoned one truly grateful turkey and, since then, the president has pardoned a turkey every year. (CNN.com)

Slate reports: “The Office of Legal Counsel has released a 4,000-page memorandum setting forth the constitutional and statutory justifications for this controversial executive action, rooted largely in the authority granted to him under Article II, Section 2 of the U.S. Constitution, as well as the Eighth Amendment and also the Perdue Family Farms Charter.” (Slate.com)

The Washington Post plays the buzzkill as well, calling the turkey pardon, “An absurd Thanksgiving ritual.” Despite the variety of “frivolous public events” the Office of the President holds each year, The Washington Post argues, “The turkey pardon stands out as being especially dumb and worth abolishing,” for a few key reasons.

They argue it’s “not a real tradition” because of its somewhat shaky foundation. Presidents pardoning turkeys has, more than once, proved to be a tactic to draw reporters’ attention away from the indiscretions of the office and those who have held it at the time. Fair. But that doesn’t make it any less of a tradition, and if reporters are so swept up by the journalistic winds of presidential turkey pardons that they ignore presidential “indiscretions,” either they not very significant indiscretions, or journalists aren’t very good at their jobs.

They also argue, “The pardoned turkeys aren't that much better off — because the life of a turkey is misery and pain.” Once again - very true. But that is inevitable. We all die, fact of life, especially when we are farm-raised fowl meant for human consumption. The birds, that have been bred for our consumption before they were marked for excellence and shipped off to our nation’s capital, were not bred to live long healthy lives. They were destined for your Thanksgiving table long before they were fated for the Rose Garden.

In this way, their body mass is often too much for their joints to handle. It’s not a natural state of being for a turkey to sustain life at the weight we would like to eat them. Therefore their life expectancy is grim. But this isn’t some big conspiracy to trick the american public into believing these turkeys ride off into the sunset and bathe in the fountain of eternal youth. In fact, I highly doubt the american people expect much of the federal government in regards to the longevity and quality of life of our pardoned turkeys. I wouldn’t consider myself an expert on the inner thoughts of the common American turkey, but I would argue even the turkeys themselves are quite content with extending their death-sentence, and living an extra couple months on the Mount Vernon Estate, coming to a slightly more natural and less graphic end. That’s what the pardon is about after all, the potential of a better future, even if it’s a turkey pardon.

The life of any turkey is likely to be miserable and painful anyway. If the presidential pardon means they expire by Easter instead of Thanksgiving, well good for them.

The article goes on to claim “The White House wants us to believe these turkeys are living out a life of leisure on the farm and bopping along to their favorite Lady Gaga tracks […] it's not clear why we need an elaborate White House ceremony designed to obscure where that food actually comes from.”

Quite frankly, in line with my thoughts on the Starbucks cup “controversy,” of all of the government “cover-ups” (both speculated and verified), I think one regarding where turkeys come or go should be the least of our worries.

(Instead, I highly recommend reading the recently declassified documents on the 1953 Iranian Coup -- they’re fascinating and far more important.)

Turkeys have a conservation status label of “Least Concern,” due to an increasing population. And 12 million Syrians (half of whom are children) have fled their homes due to conflict in their country (World Vision). Let’s be thankful this holiday season that we are living in a country, while riddled with problems and atrocities of our own, where we have both the freedom of speech and the physical and emotional security to put this anywhere near our list of outrage and concern.

The president acknowledges these criticisms and addressed them in his remarks during the 2014 pardon:

“The Washington Post recently questioned the wisdom of the whole turkey pardon tradition. ‘Typically on the day before Thanksgiving,’ the story went, ‘the man who makes decisions about wars, virus outbreaks, terrorist cells and other dire matters of state, chooses to pardon a single turkey … plus an alternate.’Tell me about it. It is a little puzzling that I do this every year. (Laughter.) But I will say that I enjoy it because with all the tough stuff that swirls around in this office, it's nice once in awhile just to say: Happy Thanksgiving. And this is a great excuse to do it.” (The White House Press Office)

You can argue whether that’s genuine. And you can make a fuss about that seemingly neutral, innocuous statement if you must. But we don’t have to.

As Magnus Fiskesjö explains in his article titles, “The Thanksgiving Turkey Pardon, the Death of Teddy’s Bear, and the Sovereign Exception of Guantánamo,” the presidential turkey pardon is an ode to something much bigger. “Masquerading as a joke, it is really a symbolic pardoning act which, through public performance, establishes and manifests the sovereign’s position at the helm of the state by highlighting, as an attribute of this position, his power to control matters of life and death.” Fiskesjö also goes so far as to make a statement on “the etymological coincidence of the words ‘executive’ and ‘execution.’” (Fiskesjo)

Although these are some pretty big jumps to make, Mr. Fiskesjo and I can agree on one thing: the tradition is a symbol of something bigger than itself. The presidential turkey pardon is the less-polarizing, G-rated version of a power granted to our commander-in-chief by the document our nation holds most dear.

“The Constitution devotes just a few words in Article II to the president’s right to grant pardons, and no rationale is provided. But the writings of Alexander Hamilton provide a hint as to what the framers had in mind when they decided the president should be able to personally overturn individual sentences and override the law of the land on a case-by-case basis. [...] Presidents used the pardon power routinely for much of American history, often to commute prison sentences, and sometimes to restore citizenship rights to former convicts who were already free. In a paper published in 2010 in the Journal of Criminal Law and Criminology, Love explains that pardons sometimes served to differentiate between crimes that the law treated as identical: For instance, before there was such a thing as first- and second-degree murder, presidents would review individual murder cases, and commute the sentences of those individuals who had not premeditated their crimes.” (The Boston Globe)

Some people see this tradition as a mockery of the actual power given to the president by Article II. But I prefer to see it this way: if the leader of the free world is making his decision to exercise an aspect of his executive power based on the social commentary that surrounds a new tradition concerning the fate of fowl -- this country has reached new lows and we should be looking at exercising some other articles of the Constitution to remedy that.

Is the presidential turkey pardon our nation’s most meaningful tradition? No. But it is a tribute, a light-hearted, mildly satiric, annual reminder and celebration of a piece of our country’s history that we do consider a national treasure -- the United States Constitution.

Can Governors Legally Act to Refuse Syrian Refugees?

By Grant Smith

9 million Syrians have fled their country since the beginning of the Syrian Civil War. This is a number greater than the entire population of New York City. Since March of 2011, the Syrian Civil War has forced native Syrians to flee everything they know in search of safety. Generally, these refugees go to countries that are not too much more stable than Syria, such as Lebanon, Jordan, Turkey, Iraq or Egypt.

This past summer, the refugee crisis topped headlines in both European and American media. President Obama publicly stated that he would be accepting 10,000 Syrian refugees, a leap from the 1,500-limit goal stated earlier in the year, but still far short of the 800 thousand Germany offered to accept.[1] The plan generally received widespread, bipartisan support.

After the horrific terrorist attacks in Paris, Beirut and Iraq on November 12th and 13th, support for refugees coming into the United States has dropped dramatically. As of now, 31 governors have specifically requested that the federal government not allow any more Syrian refugees into the country.[2] Some governors have even gone as far as asking for only Christian refugees to be allowed to enter our borders.[3] They expressed fear that these refugees may be sympathetic to or directly working with ISIS or other terrorist groups. While these governors have every right to call on the federal government to stop the inflow of refugees, they are legally obligated to allow refugees into their states.

This is not a new interpretation of federalism. In 1893, the Supreme Court ruled on Fong Yue Ting v. United States. The case focused primarily on Chinese laborers and its result is just as impactful now as it was then. “In Chy Lung v. Freeman, a statute of the State of California restricting the immigration of Chinese persons was held to be unconstitutional and void because it contravened the grant in the Congress of the power to regulate commerce with foreign nations.”[4] Fong Yue Ting made it clear that immigration is not an issue that can be controlled by states.

The federal government, not state governments, regulates immigration. The issue was brought up and discussed once again in the 1941 Supreme Court case Hines v. Davidowitz. The case reaffirmed the federal government’s authority on immigration, naturalization and the deportation of immigrants, which includes refugees.[5] If state governments controlled refugees and immigrants, there would be blatant biases in each state, creating more inequalities for refugees, not just Syrian ones. Hines v. Davidowitz made it clear that states do not have the right to regulate immigration law in our country. Imagine if Arizona’s governor suddenly decided not to accept immigrants from Mexico over fears of drug-related violence. That would be obviously unconstitutional. Just as a state cannot declare war or make treaties with another sovereign nation by itself, a state cannot decide which peoples from foreign countries come into its borders.

The decision in Hines v. Davidowitz was reinforced in the 2012 decision in Arizona v. United States. The Supreme Court determined once again that the federal government had full authority and responsibility when it comes to immigration within the United States. Justice Kennedy even went as far to say it would be “inappropriate” to send an immigrant back to their homeland if it was “mired in civil war.”[6] It is an accepted fact that was confirmed both in 1941 and 2012 that the power over immigrants is not granted to the states, but the federal government.

One hundred years before the 2012 case, Arizona was involved in another fight regarding immigration in Truax and the Attorney General General of the State of Arizona v. Raich. Although the case was focused mainly on employment, the Court’s opinion sheds light on what might happen if states could control immigration:

“The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work… And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality."[7]

The Refugee Act of 1980 is a statute that also explicitly gives the federal government, specifically the President, the direct power to make decisions on the admission and allocation of funds for refugees. Refugees are defined as people who cannot return to their home nation or country because of “persecution or well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[8] Syrian refugees perfectly fit the statutory definition. Each refugee is on the run because they fear death from ISIS, their repressive government or a stray bomb from one of the many powers involved. The act gives the President the power to decide on the number of refugees to admit in any particular year.

The Federal government clearly has authority over this issue. State governors and their governments may complain all they want, but in the end it is not up to them who is and who is not admitted into the United States or each respective state.

Much has been said about the Emma Lazarus poem inscribed on the Statue of Liberty and how it relates to the issue of admitting refugees, but it bears repeating. Not far from Ground Zero of the September 11th attacks, the iconic statue features the words, “Give me your tired, your poor, your huddled masses yearning to breathe free.” This is one of the first symbols of America that many refugees and immigrants see coming into our country. Governors refusing refugees are not only failing to uphold the Constitution’s basic rules of federalism, they are violating fundamental American principles. If we do not allow those seeking refuge from the Islamic State into our nation because we are afraid of the Islamic State, then ISIS achieves their main objective of corrupting bedrock American values with terror.

---

[1] Gardiner Harris, David E. Sanger, and David M. Herszehhorn. “Obama Increases Number of Syrian Refugees for U.S. Resettlement to 10,000”. September 10, 2015. http://www.nytimes.com (accessed November 18, 2015).

[2] Fantz, Ashely and Ben Brumfield. “More than half the nation’s governors say Syrian refugees not welcome”. CNN, November 19, 2015. http://www.cnn.com (accessed November 19th, 2015)

[3] Zezima, Katie. “Cruz: ‘No meaningful risk’ of Christians committing terrorism”. The Washington Post, November 15, 2015. http://www.washingtonpost.com (accessed November 18, 2015).

[4] Fong Yue Ting v. United States, 149 U.S. 698 (1893).

[5] Hines, Secretary Of Labor and Industry Of Pennsylvania V. Davidowitz, 312 U.S. 52 (1941).

[6] Arizona v. United States, 567 U.S. (2012).

[7] Truax and the Attorney General of the State of Arizona v. Raich, 239 U.S. 33 (1915).

[8] Refugee Act of 1980 (PL 96-212, Mar. 17, 1980).

Revisiting the Historic Citizens United v. FEC Decision for the 2016 Elections

By Jared Finkel

One year from election day, the 2016 presidential race is fully underway. This campaign is already featuring historic levels of spending as candidates are doing everything they can to get their message across to voters in early primary and swing states. Since these campaigns, with the exception of one, are not self-funded, we must ask the question: who is footing the bill?

The Case

In 2009, the Supreme Court heard arguments for the landmark Citizens United v. FEC case that fundamentally changed how we elect our government officials. The issue at hand was whether it is constitutional for large corporations, labor unions, other associations, and to some degree, groups of high-income individuals, to be able to expend mass amounts of money to aid candidates running for office.

After hearing the arguments, the Supreme Court ruled in favor of admitting the right of campaign financing to said groups by a vote of 5 to 4. The majority opinion, written by Justice Anthony Kennedy, states that through the eyes of the Constitution, individuals and groups of individuals are indistinguishable. Through this non-distinction, the federal government has no jurisdiction over restricting the First Amendment rights of corporations. Therefore, independent expenditures by corporations on elections should have no constitutional restrictions. On the other hand, the ruling had no implications on the federal ban on corporations donating directly to political parties and/or candidates. This remains prohibited. Once the Supreme Court delivered its verdict, all local and federal laws prohibiting the right of corporations to political spending were repealed. 24 states were legally obligated to do so.

Impact

One direct implication of Citizens United is the creation and vast expansion of Super PACs. Super PACs are political action committees that accept individual expenditures to help support a political cause, candidate, or party of a group of individuals. Via further court cases, restrictions to the amount of money an individual can donate to a Super PAC were sought, but to no avail: The Supreme Court upheld the First Amendment rights of individuals and corporations to spend on political campaigns without restriction.

Under the federal ban, Super PACs are restricted from direct donations to political candidates or parties. However, candidates have the ability to create affiliated Super PACs, effectively undermining the federal ban on direct corporate spending to political candidates. By using the First Amendment rights upheld by Citizens United, candidates have the ability to procure endless amounts of money to finance their campaigns.

Super PACs have now become the status quo in elections. Out of the 18 nominees running for POTUS, 16 have affiliated Super PACs, and all of them have unaffiliated Super PACs. The total number of Super PACs (directly affiliated and unaffiliated) is 45. Out of these donations, the percentage of the population that donates $200 or more is 0.23%. Despite only 0.23% of the population donating more than $200, this money constitutes 66.6% of the total campaign contributions of “individual contributions” to federal candidates (numbers and percentages are from 2014 only).

Also, the distinction between union donors and non-union donors is of importance. Unions are a collective that advocate for the rights of the many specific sectors of workers across the country. Generally, non-union donors are a collective of few that advocate for the few, thus decreasing the role of the average American in elections with the increase of donations from said collectives. Of the ten organizations that spent the most towards campaign financing in 2014, five are non-unions (1. Fahr LLC, total contributions: $75,279,259, 2. ActBlue, total contributions: $68,026,527, 4. Bloomberg Lp, total contributions: $28,708,538, 5. NextGen Climate Action, total contributions: $24,574,615, 10. Elliot Management, total contributions: $14,199,672). Of those five that are non-unions, three serve no political purpose and are essentially small groups of individuals.

Conclusion

In the majority opinion, Justice Kennedy wrote that the previous legislation on corporate political spending “muffle[d] the voices that best represent the most significant segments of the economy.” While this may be true, these voices do not represent the significant segments of the constituency that are most affected by policy: people in the lower and middle income brackets. For instance, every year Social Security is revisited and increased for the annual cost of living. This year, for only the third time since 1975, there will be no increase, whereas the average salary of CEOs of the top 350 American companies increased by 3.9%. To make matters worse, the aforementioned pay increase was partly subsidized by the taxpayers. This policy most affects the 9 million veterans on Social Security, two-thirds of seniors who rely on Social Security for most of their income, and the 15 million people where Social Security brings them above the poverty line. The people affected by this policy are the many, not the few who make up significant portions of our economy. Citizens United muffled their voices.

Too often, elections are won or lost by the relative size of one campaign’s resources.  The more a candidate can advertise and campaign, the more he or she can reach and win over target populaces in paramount districts across the nation. Political campaigning is an expanding sector of elections where candidates are not financially able to support themselves. Unfortunately, modern-day candidates flock to corporations to obtain an incredibly large proportion of their political donations.

As many observers have noted, this leads to a conflict of interest where candidates feel as if they need to pursue these corporations’ political initiatives to maintain financial support, or pursue these corporations’ political initiatives to obtain financial support. This is a fundamental flaw in our election system where corporations are encouraged to have a larger role in policy as the role of everyday working Americans is diminished. This issue might be exacerbated in future elections as the United States sees historic, growing levels of income inequality.

The very basis of democracy in the United States is the concept of one person, one vote.  If we have a system where two people are permitted to have the political impact of donating $900 million, then something is wrong. The political role of the demos should be a right, not a privilege.

New York: The Greatest City on Earth (to be Stuck in a Law Library)

Photography by Maria Dudenhoeffer

By Maria Dudenhoeffer

Two weekends ago, I spent my Sunday and Monday in New York City and took a tour of Columbia Law School. Even though it was my first trip to New York, I fell in love with the city and the prospect of attending law school there.

My trip started with a 2:30 a.m. Greyhound Bus out of Union Station Sunday morning. I arrived at Penn Station a little before 7:00 a.m. and proceeded to do the most touristy thing I could do, go to Times Square. Surprisingly enough, 6:55 a.m. is not peak tourist time so I had the opportunity to walk around while it was relatively empty. Since I would only be in the city for two days, I decided to take a bus tour, which, while cheesy, is an excellent way to get an overview of a city in a short amount of time. The biggest difference from DC in my opinion, is the sheer size of the buildings. After taking a quick break from the bus tour and visiting Roosevelt Island by the way of an aerial tram, I headed up to Columbia University to see where my tour would be taking place the next day.  

Ranked 4th in the country by US News and World Report, Columbia Law School is located in the neighborhood of Morningside Heights in Manhattan. Columbia University and Columbia Law School coexist on the same campus, which means the law students receive access to all the facilities of Columbia University. My Visitation Day started with a student-led tour of the Law School, followed by an Admissions Information Session, in which a senior admissions representative gave us an overview of the application process and answered any questions we had. Columbia Law is one of the most competitive schools in the country, with a median LSAT Score of 171 and median GPA of 3.70.

However, if Columbia is a reach (let’s face it, that’s most of us), there is still a plethora of other law schools in the NYC area. Fordham Law is a top tier school in the heart of Manhattan with the Fordham Journal of Corporate & Financial Law being the 1st-most cited student-edited banking and finance journal. NYU Law is nestled in Greenwich Village and is ranked 6th in the nation for by US News and World Report and consistently ranked 1st in International Law and Tax Law. Cardozo School of Law isn't far from NYU and, despite not having the reputation of Fordham, Columbia or NYU, is ranked 6th for its intellectual property program by US News and World Report. Brooklyn Law School, located in the hipsterest of boroughs, has an impressive bar-passage rate of 94% and produced New York City's first and only African-American mayor, David Dinkins.

Regardless of your LSAT and GPA, being at a school in NYC, much like being at a school in DC, allows for countless opportunities for internships with an assortment of institutions, ranging anywhere from investment banks to the United Nations. New York is, in many ways, the financial, commercial, political and legal capital of the world, making it an ideal place to study law. Receiving an undergraduate education in DC and studying law in New York would be an incredible experience few aspiring lawyers can hope to have.

*Special thanks to Grant Smith for the article title.

Smart on Crime: Raising the Juvenile Justice Age

By Josh Kirmsse

Last week, Connecticut Governor Dannel Malloy proposed raising the juvenile justice age from 17 to 20, and the evidence suggests that this smart-on-crime proposal not only serves a number of practical government interests, but is a realization of fairness and justice.

The first (of many) reasons raising the age from 17 to 20 makes sense is almost purely scientific. Neurologists and biologists have recently started to discover that human brains do not mature until 25. In fact, the idea that a human brain, save incredibly rare circumstances, could be anywhere near full development at age 18 has no scientific basis. The historical purpose of a juvenile justice age has been to prioritize rehabilitation over punishment in dealing with adolescents. Why? Because adolescent brains are simply not as developed as adult brains. Adolescents are more likely to be emotionally unpredictable, succumb to peer pressure, and are less likely to make decisions based on long-term consequences.

Interestingly, many other practices of age restriction recognize this disparity: 18-year-olds can’t buy alcohol, gamble, rent a car, or serve in either chamber of Congress. Many states restrict an 18-year-old’s ability to buy cigarettes as well. Is there really much sense in saying somebody can’t buy alcohol, gamble, or serve in national government, on the basis of a lack of mental maturity, yet they can still be tried as an adult in criminal court?  Having a juvenile justice age of 17 essentially negates the original purpose of having a juvenile justice system because the state will still try adolescents with less developed mental faculties and reasoning skills.

The practice also doesn’t do the legal system much good. 78 percent of 18- to 24-year-olds released from prison are rearrested and about half return to prison within three years, the highest recidivism rate of any age cohort. Germany, the only government in the world with a 20-year-old juvenile justice age, recognized these scientific and legal discrepancies. Since raising the age, they have seen no rise in youth crime, and study after study shows that more punitive sentences for minors do not serve as deterrents. Rather, punitive sentencing for adolescents works counterproductively, creating career criminals and increasing recidivism rates. In Connecticut, since raising the juvenile justice age from 15 to 17, the state has seen a 20% drop in its prison population, resulting in the lowest prison population Connecticut has seen in 17 years. Last year, 11,000 people aged 18, 19 or 20 were arrested in Connecticut, and in nearly three-quarters of those cases a misdemeanor was the most serious offense. A low juvenile justice age unnecessarily diverts much needed resources from trying more heinous crimes to prosecute mostly non-violent crime committed by those 18-20.

The question as to who we consider a juvenile is a difficult one, but, a juvenile justice age of 20 is a much more logical bar to set. We know this by studying science, examining inefficiencies, and pointing out inconsistencies in our judicial philosophies when we see them. It is certainly easy to ignore these conclusions and posit, as 18th-century English lawyer William Blackstone once did, that “malice supplies the age.” But, as in all matters of public policy, we ought to consider the facts. To succumb to our worst instincts, to ignore science and expert research and logical conclusions, and in doing that, to eliminate the opportunity of a second chance so many young offenders seek, is not justice. Justice is to recognize scientific ability and sound reasoning as the better angels of our nature, and to shape our system based on knowledge, as Governor Dannel Malloy is attempting to do by raising the juvenile justice age to 20.

Review of Recent SCOTUS Ruling on the False Claims Act

By Brett Mittler

What would you do if your employer acted unethically? Would you let it go or would you say something? Benjamin Carter, a whistleblower and a contracted federal employee, decided that  the actions of his company weren’t just. His strong values led him to tell that his company was committing fraud and taking advantage of their position.

In May, the Supreme Court issued a unanimous ruling in Kellogg Brown & Root v. United States. The question presented to the Court was: Whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling.

Whether, contrary to the conclusion of numerous courts, the False Claims Act’s (FCA) so called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “one-case-at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

CASE BACKGROUND

Kellogg Brown & Root Services, Inc. (“KBR”) provided logistical services to the U.S. military in Iraq under a multi-year government contract. Benjamin Carter, the respondent worked for contactor as a water purification operator. From January 2005 to April 2005 he alleged witnessed that KBR had billed for services that were not performed or not performed properly. He subsequently filed a qui tam suit complaining against the petitioners, in a case know as Carter I.

In 2010, right before the trial was set to start, the Government informed both parties that about an earlier filed qui tam lawsuit that was filed, United States ex. Rel. Thorpe v. Halliburton Co., that had contained similar claims. Under the FCA, this appeared to be in violation of the “first-to-file” bar; therefore, it was dismissed by the District Court; the respondent then repealed the decision. Carter was sure to quickly file a new complaint, in what is known as Carter II, but this was also dismissed because Carter I was still pending on appeal. Knowing he was at an impasse, the respondent voluntarily withdrew his appeal and in June 2011, more than six years after the alleged incident in Iraq, he filed a third appeal known as Carter III, which is the case now in question.

After this filing, the petitioners sought dismissal of this case under the first-to-file rule because there were two cases in two different states that had been filed in the time Carter waited to file again. The court decided that the case was dismissed with prejudice because of one of the other pending suits from a different state. Additionally, they decided that they WSLA applies only to criminal cases and that the respondent civil claims were untimely.

Furthermore, the Fourth Circuit reversed, rejecting the District’s Court’s claim interpretation of both the first-to-file and WSLA issues. They concluded that the WSLA does, in fact, apply to civil cases as well, so the case was filed on time. The Court of Appeals also held that the first-to-file rule ceases to apply once a case was dismissed. Since The Fourth Circuit decided at a time when both other cases out of state were dismissed, the court held that the respondent had the right to refile his case and remanded Carter III with instructions to dismiss without prejudice.

Right as this was done the respondent filed Carter IV, only to find that the case was again dismissed because the petition for a writ of certiorari in Carter III was still pending. The Supreme court granted the petition for the case to be heard, reversing and affirming in part.

DECISION

In Kellogg Brown & Root Services, Inc. v. United States Ex. Rel Carter , No. 12-1497  (U.S. May 26, 2015), the Supreme Court held that respondent Benjamin Carter had a right to refile his case because he did not violate the False Claims Act (FCA) first-to-file bar. Carter, who worked for Kellogg Brown & Root (KBR) as a government contractor providing logistical services to the U.S. military in Iraq, filed a whistleblower lawsuit against his former company. He alleged that KBR was engaging in fraudulent billing practices under the False Claims Act which prohibits making “a false or fraudulent claim for payment or approval,” 31 U.S.C. §3729(a)(1), to the U.S.. Government. Just before the initial trial was to take place in 2010 the government informed the parties that a complaint of similar nature had previously been filed. The district court decided (without prejudice) to dismiss Carter’s suit under the FCA’s “first-to-file” rule, which bars a new suit if there is one pending, §3730(b)(5). Subsequently, when Carter refiled his suit in 2011, KBR motioned to dismiss by arguing that the FCA’s six-year statute of limitations had expired and that there was still related matter pending. The U.S. Court of Appeals for the Fourth Circuit reversed the district court. The appellate held that there was no pending matter to prevent Carter from proceeding with his claim and that the Wartime Suspension of Limitations Act (WSLA) applied not only to criminal cases, but also civil cases such as Carter’s. Therefore, the respondent had a right to refile his case.

In a unanimous decision written by Justice Alito, the Supreme Court reversed in part the appellate ruling that the act applied to both criminal and civil cases, stating it only applied to criminal cases after their extensive review of the WSLA’s text. The court reasoned that the FCA’s first-to-file bar keeps new claims out of the court only if new claims are still alive, not in perpetuity. They read §3730(b)(5) to conclude that the term pending, in this case, was in accordance with an ordinary dictionary definition. The court did not want the term pending to mean first-filed, which prevented Carter from bringing the suit again because of another “pending” case. Finally, the court remanded the case to back to the U.S. Court of Appeals for the Fourth Circuit.