Whether Section 3730(b)(5) of the False Claims Act is a jurisdictional provision that permits courts to consider all of the 'facts underlying the pending action' to determine its application

QUESTION PRESENTED The False Claims Act (FCA), 31 U.S.C. §§ 37293733, permits qui tam relators to sue on the United States’ behalf to recover damages for frauds against the government. In a successful case, the relator keeps a share of the proceeds. A provision of the FCA’s private right of action, sometimes called the “first to file bar,” provides that “[w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). Under this provision, when multiple relators bring actions based on the same underlying facts, every action after the first must be dismissed while the first remains pending. The circuits are split, five to three, over whether Section 3730(b)(5) is jurisdictional. Here, the First Circuit joined the minority, holding that because Section 3730(b)(5) is not jurisdictional, a court adjudicating a motion to dismiss may only consider pleadings and facts subject to judicial notice, as opposed to all of the “facts underlying” the relevant actions. Applying this rule, the First Circuit held that a relator who sued a defendant over two years after the first relator was nevertheless “first to file” because the two relators’ complaints are different. The district court had reached the opposite conclusion after considering all the facts (not just the complaints). The question presented is whether Section 3730(b)(5) is a jurisdictional provision that permits courts to consider all of the “facts underlying the pending action” to determine its application.