Whether an action asserting False Claims Act claims is a 'related action' under the First to File rule when the government declines intervention and the Relator is the first and only to file against the Defendants

I Whether, an action asserting claims under the False Claims Act, 31 U.S.C. § 3729(a)(1)(A), is a “related action” to a previously filed “pending action” and is thus properly dismissed under the First to File rule where the government has declined to intervene in either action and where Relator in the subsequently filed FCA action was not only the first to file, but the only to file an FCA action against the three named Defendants. II Whether a Motion to Dismiss under the FCA’s “First to File Rule” is properly addressed under Fed. R. Cir. P. 12 (b)(1)(subject matter jurisdiction) or under Fed. R. Civ. P. 12 (b)(6) (failure to state a claim).