On June 23, 2015, the US Court of Appeals for the District of Columbia Circuit held in U.S. ex rel. Heath v. AT&T, Inc. that the False Claims Act’s first-to-file rule is not a jurisdictional bar and, instead, bears only on whether a qui tam plaintiff has properly stated a claim (No. 14-7094, (D.C. Cir. June 23, 2015)).

In October 2011, Todd Heath, a telecommunications bills auditor, filed a qui tam complaint (a complaint brought by a private person to sue for a penalty on behalf of the government) against AT&T, Inc. and 19 of its subsidiaries under the FCA (31 U.S.C. §§ 3729-3733). Heath alleged that AT&T had orchestrated a corporate-wide scheme to submit false claims overcharging a program administered by the Federal Communications Commission. The district court dismissed the complaint for lack of jurisdiction, holding that a prior qui tam suit filed by Heath against Wisconsin Bell, Inc., a wholly owned subsidiary of AT&T, barred Heath's current complaint under the FCA's first-to-file rule, which prevents a second relator from bringing another action based on the same facts underlying the pending action (31 U.S.C. § 3730(b)(5)).

The D.C. Circuit Court reversed the dismissal, holding that the first-to-file rule bears only on whether a qui tam plaintiff has properly stated a claim, not on a court's jurisdiction. The appellate court, while acknowledging that the First and Fourth Circuits had previously treated the first-to-file rule as a jurisdictional bar, noted that when Congress wanted limitations on FCA suits to operate with jurisdictional force, it did so explicitly. The court found that neither the statutory language nor the structure of the first-to-file rule speaks in jurisdictional terms or refers in any way to the jurisdiction of district courts. The court also found it noteworthy that the US Supreme Court's most recent FCA case addressed the first-to-file bar on purely nonjurisdictional terms (see Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter (No. 12–1497, (May 16, 2015))).

Applying the first-to-file rule to the case at issue, the appellate court held that Heath's qui tam complaints pertained to two materially distinct fraud schemes. Therefore, the court held that the first-to-file rule's nonjurisdictional procedural bar did not apply to Heath's complaint against AT&T, Inc.