UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 12-1011


UNITED STATES EX REL. BENJAMIN CARTER,

               Plaintiff - Appellant,

          v.

HALLIBURTON CO; KELLOGG BROWN & ROOT SERVICES, INC.; SERVICE
EMPLOYEES INTERNATIONAL,INC.; KBR, INC.,

               Defendants - Appellees.


      On Remand from the Supreme Court of the United States
                       (S. Ct. No. 12-1497)


               Decided on Remand:   August 7, 2015


Before AGEE, WYNN, and FLOYD, Circuit Judges.


Affirmed in part and reversed        and   remanded   in   part   by
unpublished per curiam order.


ARGUED: William Clifton Holmes, DUNLAP, GRUBB & WEAVER, PC,
Leesburg, Virginia, for Appellant.     John Martin Faust, LAW
OFFICE OF JOHN M. FAUST, PLLC, Washington, D.C., for Appellees.
ON BRIEF: Thomas M. Dunlap, David Ludwig, DUNLAP, GRUBB &
WEAVER, PC, Leesburg, Virginia, for Appellant.        Craig D.
Margolis, Tirzah S. Lollar, Kathryn B. Codd, VINSON & ELKINS
LLP, Washington, D.C., for Appellees.
                                        ORDER


PER CURIAM:

       This case returns to us on remand after the Supreme Court

granted   Kellogg      Brown   &   Root       Services,      Inc.’s   petition    for

certiorari,    and     reversed    in     part     and     affirmed   in   part   our

decision in United States ex rel. Carter v. Halliburton Co., 

(4th Cir. 2013).          The only issue left for resolution is

whether Carter timely filed his complaint under the principle of

equitable tolling.       Appellees–Defendants have filed a motion for

summary    affirmance     under    Fourth          Circuit    Local   Rule    27(f).

Because Carter raised the issue of equitable tolling for the

first time in a motion to file a surreply and has not appealed

the district court’s denial of that motion, we find that the

issue is not properly before us and that equitable tolling is

thus unavailable.        See ACLU v. Holder, 

, 252 n.5

(4th   Cir.   2011).      Therefore,          we   grant     Appellees–Defendants’

motion for summary affirmance and affirm the district court’s

judgment in regard to that issue.

       Of course, the district court judgment was not wholly free

from error, as “dismissal with prejudice of respondent’s one

live claim” was “not called for” under the first-to-file rule.

Kellogg   Brown   &    Root    Servs.,    Inc.      v.   United   States     ex   rel.


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Carter, 

, 1978-79 (2015); Halliburton 

.   Thus,   this   case   is   remanded   for   further

proceedings consistent with the Supreme Court’s opinion.

                                                  AFFIRMED IN PART,
                                      REVERSED AND REMANDED IN PART




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