UNITED STATES OF AMERICA ex rel. DONALD LITTLE and KUROSH MOTAGHED, Plaintiffs - Appellees,
TRIUMPH GEAR SYSTEMS, INC., Defendant-Appellant.
from the United States District Court No. 2:12-CV-00922-DAK
(D. Utah) for the District of Utah
Douglas W. Baruch, Fried, Frank, Harris, Shriver &
Jacobson LLP, Washington, D.C. (John T. Boese, Michael J.
Anstett and Aaron T. Tucker, Fried, Frank, Harris, Shriver
& Jacobson LLP, Washington, D.C., and Jason D. Boren,
Ballard Spahr, LLP, Salt Lake City, Utah, with him on the
brief), for Defendant-Appellant.
A. McConwell, McConwell Law Offices, Mission, Kansas (Donald
E. Little, Austin, Texas, with him on the brief), for
TYMKOVICH, Chief Judge, LUCERO and MORITZ, Circuit Judges.
MORITZ, Circuit Judge.
appeal arises from the efforts of several whistleblowers to
navigate the procedural minefield of the False Claims Act
(FCA). See 31 U.S.C. §§ 3729-3733. In
2012, Joe Blyn commenced this FCA action by filing a sealed
complaint in the district court. The complaint named Donald
Little as Blyn's counsel of record. Months later, Little
filed an amended complaint that named himself and a third
person, Kurosh Motaghed, as the sole relators. Blyn was excised
from the caption-and the rest of the amended
Triumph Gear Systems, Inc. (Triumph) moved to dismiss Little
and Motaghed's claims. Triumph argued that their claims
are barred by the FCA's first-to-file rule, which
prohibits new relators from intervening in a pending FCA
action. See § 3730(b)(5). The district court
denied Triumph's motion, and Triumph appeals. Because we
conclude that Little and Motaghed's entry into the action
violated § 3730(b)(5), we reverse.
is a government contractor that manufactures aerospace gear
systems. Blyn worked as an independent contractor for
Triumph, and he alleges that he witnessed instances of fraud
on the United States by Triumph. In October 2012, Blyn filed
a sealed complaint in the district court claiming that
Triumph violated the FCA. The complaint named Blyn and three
John Does as relators. And the complaint identified Little as
Blyn's counsel of record, but not as a relator.
2013, Blyn vanished from the action. Little filed an amended
complaint that made no mention of Blyn or the John Does,
either in the caption or elsewhere. Inexplicably, in several
instances, Little seems to have simply substituted his name
for Blyn's without regard for the resulting
incongruities. For example, Paragraph 24 of the complaint
alleges that "[o]n September 6, 2006, Relator Joseph
Blyn went down to heat treat and verified in person that the
inspection requirements for gear inspection" were
"not being carried out." App. 22. Paragraph 24 of
the amended complaint makes an identical allegation, but
substitutes attorney Little for Blyn. And while the docket sheet
indicates that the original complaint was "filed by Joe
Blyn, " the amended complaint was "filed by Donald
Little [and] Kurosh Motaghed." App. 4. Oddly, none of
the amended complaint's substantive allegations pertain
to Motaghed, despite his status as a putative relator.
the United States declined to intervene, the district court
unsealed the amended complaint. Little and Motaghed amended
the complaint twice more, and Triumph moved to dismiss the
third amended complaint on multiple grounds. As relevant to
this appeal, Triumph argued that the district court lacked
jurisdiction over Little and Motaghed's claims under the
FCA's first-to-file rule. Under that rule, when a relator
brings a qui tam action under the FCA, "no person other
than the [g]overnment may  intervene or  bring a
related action based on the facts underlying the pending
action." § 3730(b)(5). Triumph maintained that when
Little filed the amended complaint, he and Motaghed
effectively intervened as new relators and replaced Blyn.
district court disagreed. Relying on our decision in
United States ex. rel. Precision Company v. Koch
Industries, Inc., 31 F.3d 1015 (10th Cir. 1994), the
district court reasoned that § 3730(b)(5)'s bar on
"interven[ing]" applies only to interventions under
Federal Rule of Civil Procedure 24-and not to additions or
substitutions accomplished through Federal Rule of Civil
Procedure 15. The district court concluded that Little and
Motaghed entered the action through a Rule 15 amendment and,
accordingly, aren't barred by § 3730(b)(5). The
district court rejected Triumph's additional grounds for
dismissal and denied Triumph's motion.
district court certified for interlocutory appeal its order
denying Triumph's motion to dismiss. We granted
Triumph's petition for permission to file this
the appeal was docketed, Little and Motaghed filed a motion
in this court to amend the third amended complaint. Their
proposed fourth amended complaint would add Blyn as a
argues on appeal that the district court lacked jurisdiction
over Little and Motaghed's claims. Because Triumph's
argument presents questions of subject matter jurisdiction
and statutory interpretation, our review is de novo.
Niemi v. Lasshofer, 770 F.3d 1331, 1344 (10th Cir.
2014); Precision, 31 F.3d at 1017.
permits a qui tam plaintiff to "bring a civil action . .
. for the [plaintiff] and for the United States
[g]overnment." § 3730(b)(1). If the suit ultimately
yields damages for the government, the relator generally
shares in the award. See § 3730(d)(1)-(3).
Congress intended this private cause of action to
"encourage those with knowledge of fraud to come
forward." United States ex rel. Fine v. MK-Ferguson
Co., 99 F.3d 1538, 1546 (10th Cir. 1996). But to prevent
parasitic and duplicative lawsuits, the FCA imposes an
important constraint on qui tam actions: the first-to-file
rule. See Grynberg ex rel. United States v. Exxon Co.,
USA (In re Nat. Gas Royalties Qui Tam Litig.),
566 F.3d 956, 961 (10th Cir. 2009) ("The first-to-file
bar thus functions both to eliminate parasitic plaintiffs who
piggyback off the claims of a prior relator, and to encourage
legitimate relators to file quickly by protecting the spoils
of the first to bring a claim.").
rule provides that when a qui tam plaintiff brings an action
under the FCA, "no person other than the [g]overnment
may  intervene or  bring a related action based on the
facts underlying the pending action." § 3730(b)(5).
Triumph argues that Little and Motaghed are
"person[s]" who "intervene[d]" in
Blyn's action. Id. And because § 3730(b)(5)
is "a jurisdictional limit on the courts' power,
" Grynberg, United States ex rel. v. Koch
Gateway Pipeline Co., 390 F.3d 1276, 1278 (10th Cir.
2004), accepting Triumph's argument would spell the end
of Little and Motaghed's claims.
success of this argument turns on the meaning of the word
"intervene" in § 3730(b)(5). In the FCA
context, the Supreme Court has defined
"intervention" as "the requisite method for a
nonparty to become a party to a lawsuit." United
States ex rel. Eisenstein v. City of New York, 556 U.S.
928, 933 (2009); see id. (defining intervention as
"[t]he legal procedure by which . . . a third party is
allowed to become a party to the litigation"
(alterations in original) (quoting Black's Law Dictionary
840 (8th ed. 2004))). Under that broad ...