The Cure Is Worse: First Circuit Circumvents False Claims Act's First-to-File Rule in United States ex rel. Gadbois v. PharMerica Corp.
In 2015, in United States ex rel. Gadbois v. PharMerica Corp., the U.S. Court of Appeals for the First Circuit held that a qui tam relator could use supplementation to cure a jurisdictional first-to-file defect in a False Claims Act (“FCA”) action. In contrast, in 2010, the U.S. Court of Appeals for the Seventh Circuit in United States ex rel. Chovanec v. Apria Healthcare Group, Inc. held that relators barred by first-to-file must face dismissal without prejudice and then refile if they are to proceed. Separately, in 2015, the U.S. Court of Appeals for the D.C. Circuit in United States ex rel. Heath v. AT & T, Inc. held the first-to-file rule nonjurisdictional. This Comment argues that the Seventh and D.C. Circuits were correct. An approach that is inconsistent with either holding would contravene the plain language of the first-to-file rule and the FCA’s structure. A refiling requirement also effectuates the FCA’s purpose because it promotes the prompt resolution of cases that are most likely to yield government recoveries. Adopting this requirement is critical to reining in an expansive qui tam regime.