Alito: Pending does not mean “First Filed Action” Because Marbury v. Madison and Socrates

May 26th, 2015

Justice Alito has a bit of fun rejecting the petitioner’s reading of “pending” in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter:

Petitioners argue that Congress used the term “pend- ing” in a very different—and very peculiar—way. In the FCA, according to petitioners, the term “pending” “is ‘used as a short-hand for the first filed action.’” Brief for Peti- tioners 44. Thus, as petitioners see things, the first-filed action remains “pending” even after it has been dismissed, and it forever bars any subsequent related action.

This interpretation does not comport with any known usage of the term “pending.” Under this interpretation, Marbury v. Madison, 1 Cranch 137 (1803), is still “pending.” So is the trial of Socrates.

Hemlock would have been a more fitting punishment for this argument.