an action shall not be brought if specified circumstances apply and an action is brought contrary to that provision that it must be dismissed and that's the way the first to file bar is written it says no action no person other than the government intervene or bring related action and the supreme court laid down a general rule and how strong that it reaffirmed in mcneil that where a statute is phrased in that matter and an action is brought contrary to the provision it must be dismissed and then just two years ago  the supreme court specifically cited this provision in the first file bar as an example of a provision unlike the seal requirement that is phrased in that conditional way and that does in the supreme court's words expressly require dismiss so we think that those cases resolve this case this case was filed not a jurisdictional are working with their right that's true so it's in the nature of a defective  complaint i mean there could have been a new complaint filed a fresh action brought at the time that the third and then a complaint was filed could have been restarted when the regiment was in any pending anything pending at the time right your honor but as your honour's question suggested there's  that there was based on plain language and then the next question is is it was it jurisdictional or not and if not could it be cured and the district judge held it could be cured was cured by the  which is why i think the jurisdictional issue is really a red herring i think the cure question turns on whether there is a connection between the supposed cure the filing of a new complaint in the bard action and the bar the bar is phrased not as the prosecution of an action that's not what bar that's not what's barred not going to judgement action not engaging in discovery or what have you it's the bringing of the action at that's what congress bargained you explain why that makes any sense at all that is that i think you just said the relator here could have on the day after the first filed case was dismissed dismissed his own case and filed a new one and that would have been  fine but because he did not do that but instead filed an amended complaint in this case that's not fine and there's mandatory dismissal is there any red rational reason why that should be so well first i would say yes there are a number of part of a package of amendments in one thousand nine hundred six that was designed to achieve the golden mean as some courts have put it between incentivizing relator to bring cases where there were later is are bringing valuable information to the government the government needs their help and not to bring cases where the government doesn't need their help and not and not me but every relator in the situation that mr wood was in still has the incentive to keep filing lawsuits multiple lawsuits mostly after most after a lawsuit because as long as all the prior lawsuits are sealed there is no disincentive to filing there is indeed still the incentive to try to be the first because you think you might be the first your honor i think are wrong it's true that  every later might not know whether there's a pending action that would bar his suit if it's under seal that's not always true sometimes they're unsealed in the first a file bar has an important role to play in that situation as well but i think more fundamentally what congress was getting at is the government should not have its recovery diminished by having to share with a relator where the government was already equipped to investigate the relator allegations by virtue of a prior case making similar allegations you know if there was a  ten fifteen your stature limitations here you wouldn't even be here i mean you're here you're fighting because you want to keep you want to have that have the statute of limitations starters as late as possible and not have to go back to whole case is not having the statute go back to the filing of the original complaint right your honor and congress among other goals that congress was trying to achieve that so i mean if if if it's an amended complaint you'd have to deal with relating back if it's a new complaint you'd have to deal with equitable stopping right here or is there really a difference in the end or for a number of reasons i don't think an amended complaint in this action even if an amended complaint were somehow viewed as curing the improper bringing of the action in the first place which i submit the court shouldn't conclude because that doesn't match up to the amended complaint still could not relate back to the initial complaint both because of this court's decision in baylor but also more fundamentally about the first to file bar the court should not be in the business of trying to render a no the of the bar that congress enacted and letting an amended complaint relate back to a complaint that was filed to an action that was filed in violation of congress's provision is  and conversely the first to file bar would not have any effect on a complaint that fortuitously was filed the day after a sealed complaint was  that's already been established right in that order case in the supreme court so it's hardly a nobody with this rule and it doesn't necessarily make a lot of sense without it i mean i'm not i'm not suggesting you're wrong it's just a very very peculiar set of situations well i think your honor one of the other reasons why the first of all bar does make sense applied the way that we think it should be applied is congress could very reasonably have viewed the belated springing of stale claims as a problem so that if the first of all bar required only staying as opposed to dismissing a case that was brought in violation of the bar and then that case comes to life years later when the first of the first filed case is dismissed then you have a situation like you would have here of very old allegations that are on hold for a very long time that's bringing to life in the nature of this whole we term scheme right because the complaint is sealed the government investigate so the complaint is sealed a complaint is filed in two thousand and ten and then it goes to the government and the government sits on it for eight years now but then they decided either to prosecute the case or to to release it to the re lator and into those circumstances the case is then prosecuted and the statute of limitations goes back to the filing of the original complaint so you know it's still claims are part of the scheme it seems to me well it's one thing your honor for a claim to be litigated actively after a delay because of the government's investigation that is how the cut the statute is supposed to work it's another thing for claims that were not supposed to have been brought in the first place invite that were brought in violation of the first to file bar to come to life many years later and force the defendant to litigate many years later against claims that shouldn't have been brought in the first place and it can't be brought up that late date you save some time for a bone i think you understand the government  it please the court sara caroline behalf of the united states we agree with allegan that the plain language of the first to file bar requires dismissal without prejudice under circumstances like these that's a longstanding position of the united states in two thousand and three for example grindr case in the tenth circuit in which we argued that the subsequent dismissal of a first child action couldn't revive claims that were barred when filed and as mr buckholtz mentioned in the elegant case just about a year and a half ago the supreme court described the first to file bar as one expressly requiring dismissal where it was violated and that was something that we had argued in that case and in the solicitor general's brief he explained that the united states  first to file bar as a provision that mandates dismissal where an action is brought in violation of it what happens when the complaint is filed sutton the new complaint is filed it's without prejudice and then a new complaint is filed and don't you to take  position that the statute has told us that as it is likely to say we believe that we believe that a new action would need to be filed and we think that there could well be related is out there who would be entitled to equitable tolling of the statute of limitations in the the circumstances of the of the delays that that allow you to do yes that's right your honor and we do not think that one can simply file an amended complaint and have that completely relate back in the same action because the amended complaint can't cure the fact that the action itself was brought in violation of the bar but we do think that well a new action is required there could be related is out there who would be able to show that they're entitled to equitable tolling but like the d c circuit and we think that the best approach would be for this court simply to note that possibility but not to resolve it seems to me that the government is the partly at fault here because there was a three year delay between two thousand and thirteen to two thousand and sixteen as the government had before  t would case and did nothing or waited and now now the time has gone by and taking his position it's hard to see how the public for me to see how the public interest is served here a couple of responses here on the right right first i would note that i think to me it seems like the more relevant date is the date on which the earlier filed actions were dismissed not the time after that when this action remained under seal because it was those earlier filed actions that pose the bar i also think your honor that the government certainly has an interest in having time to investigate false claims act cases while they remain under seal and i recognize of course that that can can take some time but i think that that's  operating as it's supposed to well there's a statute have a time limit on the period of time that the government can and can investigate my understanding is that there is a period of time a shorter period a specified period of time for the government to i don't remember the details that she has an unrealistically short time for the government to investigate which de facto turns into an indefinite period for the government to investigate that may go on so long the  say well i think you're right your honor that the investigations can often take longer than sixty days but again i think that the relevant question is when the earlier filed actions were dismissed and we think that there are various always take a lot longer than sixty days that was my experience ok even accepting that to be true your honor our brief describes a few ways in which we think that concerns arising from you know a reading of the plain language of the statute could immediately or  so i take it the government's position is that tolling as a legal matter you see no obstacle to the existence of equitable tolling but that would of course be a case by case determination and you'd don't tell us anything about under what circumstances would you know what kind of related is would and what kind of related is wouldn't and you don't tell us anything about whether this relate or would and it seems to me it would be extremely difficult for this court to address equitable tolling in anything other than dick utter dictum and all you're saying is we might have a footnote saying government says maybe there's equitable toll and that could be taken up later if mr wood files a new complaint and of course well again would not agree with the government that equitable tolling could apply and certainly wouldn't agree that it applies in this case and then we're off to many more years of litigation over that subject and that's the government's solution to this case i think that you know the most that we think it's appropriate to do in this case is to note the possibility the possibility of equitable  think as your honor rightly points out that the that the tolling determination would be a very fact specific one that we think would be better i made in the first instance in the refiled suit and you're right that almost have to be and i don't know how we could possibly speculate about th first to file provision does not expressly override that procedural rule congress legislates against the backdrop of the federal rules what about the amended complaint cures anything at all the first of all  the amended complaint as you're on or is alluding to does not specifically refer to the dismissal of the earlier two complaints but did what difference would that make the argument of l again would still be exactly the same would it not  well the arguments might be the same but the effect of supplementing the pleading would be to cure the defect in the original complaint as contemplated by rule fifteen d how does trying to figure out how it cures something the problem is that the action was filed while a prior related complaint i understand you object to it was related but for the purpose of this argument where assuming that it was filed while a the action was filed while a related action was pending so what about filing either the same or a different or slightly amended complaint or radically amended complaint in the same action cures the fact that the action was to have been dismissed at the time it was filed would have been should have been if only the district court in the case had known that there was another action that the  bar was in place at the time the complaint was filed but it was lifted by the time the third amended complaint was filed and this is exactly the situation that the supreme court confronted in matthews against diaz mathews against as where there was a jurisdictional exhaustion requirement the plaintiff filed prior to exhausting administrative remedies then later exhausted those administrative remedies and the supreme court said that that's an appropriate place for r and the language of the first to file statute is much closer to the language in mcneil in that it is a prohibition on filing an action rather than just a condition proceeding and something like filing an action does that make a difference no i don't think that distinction holds up because the the notion that there is some difference between an action and a complaint is inconsistent with matthews the courts have jurisdiction over actions not complaints so the jurisdictional exhaustion requirement in matthews meant that that whole action was barred there was no jurisdiction over that action and yet the supreme court said after the exhaustion requirement was subsequently met the plaintiffs could use rule fifteen d and just like in this case in that in mathews the supreme court said the new complaint actually doesn't allude to the exhaustion what happened was that the defendant stipulated to the fact that there had been exhaustion here judge firman said the same thing is true the defendant requested judicial notice of the fact that the earlier complaints had been dismissed and so notwithstanding the fact that the third amended complaint and allude to it that was the functional equivalent of a supplement under rule fifty and why why is an amended complaint even necessary i your theory really that the bar disappears once there is no longer a pending action well to be candid judge lynch i think that that could be a way of resolving this case that is to say jones again spock the case that i filed a twenty eight day letter on makes i think i think supports the argument that the first to file bar is really an affirmative defense and therefore isn't something that the plaintiff needs to plead at all is something that the defendant can raise as an affirmative defense really not something that the plane could be required to plead because the plaintiffs in many cases would have no idea information believe for the first to file or we don't know whether anything has been filed so where is suing that we're the first to file right it would be it is somewhat unusual to treat it as something that the plaintiff has an affirmative duty to plead but you know we don't feel like we need to fight against the original complaint and if that problem persists then dismissal is warranted but the question that arises is what happens when that bars subsequently lifted do you still have to dismiss and then refile or can you use supplementati and that's where rule fifteen does its work there would be no work for rule fifteen to do rule fifteen d that is to do if the complaint weren't subject to dismissal in the first instance so how strong and mcneill and  simply stand for the proposition that while the bar is in place dismissals appropriate they don't supersede rule fifteen d which comes in to say that if the bar is then lifted you don't have to dismiss an refile because that subjects the plaintiff to all the prejudice and the vagaries of having to dismiss and or trial that was the whole point how do you respond to some of the policy concerns your position would reward or relate think the fundamental response to that is that the first to file rule was and acted as part of the one thousand nine hundred six amendments to the false claims act and the core purpose of those amendments was to enhance the government's ability to fight fraud not to hinder them and the way the first to file rule enhances the government's anti fraud capabilities is to ensure that the first filed or later is bounty is not diluted when subsequent in on its case but once the first filed or later abandons his claim as was the case here the bar is not some leaders would have incentive to violate the rule you know let's get it on file and we'll be in position if if the first case goes away i think that in the real world as was the case here many related do not know that there is an earlier filed case because those cases remain under seal if they if they did no then presumably so would the defendant and so would the court and so the mandatory dismissal rule would take effect so if someone intentionally violated the first to file a rule by filing a second complaint except perhaps in some rare case i mean it's not so rare i don't know where the second relator has some private channel to know that there was a prior filed case but nobody else knows except the government except in that kind of situation achieved through the public disclosure bar primarily not primarily through the first to file rule of the first to file rule is really designed to make sure that the first person in line remains first in line put it must be more to it than that because it would be very very simple matter to say the first person to file gets the bounty and nobody who files later gets a bounty right without prohibiting them from filing the lawsuit so there must be something more than just preserving the bounty  for the first file or two actually prohibiting second laws and i think that the additional thing is that there is an interest on the part of the defendant but that interest is a limited one and it's an interest in avoiding simultaneous lawsuits but again where the first relator abandons his claim there is no that policy consideration doesn't come into play because the later relator shouldn't be hindered in his ability to then pick up the mantle and litigate the case on behalf of the government and i would add that the government that the argument that the government can always intervene is is not persuasive because the government doesn't want to intervene in a lot of cases including because it doesn't have the resources to do so carter made clear that again one of the purposes of the one thousand nine hundred six amendments was to alleviate the fact that the government didn't have the resources to pursue these claims and needed to rely on private whistleblowers and so the idea that the government can solve these things by intervening i think is contrary again to the core purposes of the  amendments you know just offhand how many of these cases that go or are the statistics for the relationship between the cases that the government actually takes in are and prosecuted self as opposed to late leaving it to the lawyers the impression i got lawyers is that this is really a tool for the government to pursue these claims fortunately don't have to expend the resources and so it's a way of addressing serious problem and that the government then benefits greatly of the benefits of this regime there are any instances in which relator is bringing valuable information to the government they pursue claims that yield significant recoveries for the government and the ability of the relator to pursue that claim without government intervention alleviates the burden that the government would otherwise face if the court has no further questions i think thank you for its time  that been overtaken by events but there had been an actual trial in the supreme court said we were grad having to throw this case out at this late date but that's what the statute says and mcneil the condition that hadn't been satisfied at the time the action was brought was later satisfied it would have been a very simple matter if it were actually a solution to a supplement or fifteen day or for the court to simply take notice of the fact that the condition had been satisfied the court obviously recognised that that's clear from the opinion but the court says that the rule is if the action is brought in violation of a statute it has to be dismissed and in rigsby same thing the supreme court explicitly distinguishes between the seal requirement which is not phrased in this kind of conditional manner and the first to file bar and other provisions that are and says violation that the remedy for a violation of those provisions like the first of all bar is expressly dismissal also it's obviously not expressly it doesn't say anything about it the court says that the court says that and it says it in dictum visa v this case isn't it i mean there's no there was no indication in first one rigsby they were addressing a different the issue in the case was about a different provision that's true and secondly the i think the your adversaries acknowledge that dismissal is mandatory in the situation where the the first case remains pending so that and it's not clear to me that the court the supreme court in rigsby in a case that is addressed to and primarily concerning a completely different provision in saying that dismissal is mandatory in this different situation or in the situation of the first to file rule was paying any attention to thinking about contemplating imagining a case that falls somewhere in between the classic case where it is still pending and carter where new cases filed after it's no longer pending this is just a different situation is an honor i don't think it's i don't think it's right that the court was not aware of these issues in carter itself just one year before rigsby the supreme court firm to the dismissal of carter in this exact situation where the bar no longer applied to prevent the filing of a new action because the prior case had been dismissed not holding it was an important part of the court's reasoning and rigsby to distinguish the seal provision from other provisions specifically the court said including first to file that are phrased in this conditional manner i also just want to make the point that the court in your hon a number of questions about what's the policy behind all this what purpose does this serve and i want to give two answers to that if i have a little bit of time to do so the first as when i make those two points and then finish up the first is what the supreme court the justice stevens says you could have asked the same question in mcneil right that the condition precedent that hadn't been satisfied was later satisfied what sense did it really make to throw out the plaintiffs lawsuit but justice stevens for the court says although the burden may be slight in an individual case the statute governs the processing of a vast multitude of cases the interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory command the same thing is true here as for the policy issues  honors faced two key town complaints within the limitations period the government investigated those complaints decided not to intervene and then faced a third key town complaint this case that the government took the time to investigate the government actively investigated and the government could have intervened solve the first to file problem government decided not to and there is no injustice in simply enforcing the regime that congress enacted that requires dismissal of this case the government could have intervened if it wanted to but it didn't and all