the temp to about this but nevertheless the district court dismissed the complaints now before us i'm going to show you that the district court heard in three important ways first i do not is is it's pretty straightforward justice kagan wrote in a opinion about two years ago that a court must look hard and look hard again returning before turning a simple case into a a relator to to proceed pro se he needed to have a lawyer when he obtained a lawyer with the government's with with with the with the with the court see knowledge all along shortly a few months later not tobar two thousand and fourteen he filed the proposed amended complaint the garcia of the post amended amended complaint we're talking about that and so we have the garcia let's just keep the straight we have got the garcia argument about consolidation this is an argument that we have the evidence that we that we needed just to do survive ninety maybe i missed this now in the kelly description that you gave she file yes door right sitting inside the door it was a complaint that had all the same allegations and only garcia is a plant yes oh ok so by i will concede i mean that that should not be a those words in the earlier think about this forget about the false claims context think about this with with every other complex case you have if a plaintiff has allegations and leaves the case settles were whatever those allegations don't remain in that in th garcia files in two thousand and seven ok that complaint there she walks in the door when she filed her second time and now it's her first time she barred so that's a that's a that's a that's a that's a very good question  to make you know is it not it is to make the claim known ok yes so it seems to me even back then was there an issue  would that make it but why would that make a difference kelly is the one who brought the allegations there that she you know she owns the allegations so of course you file the complaint that says here's what happened in one of the people who told me this is this  does representative kelly and that's what the complaint says kelly can't walk in later and say i'm the first to file because there's already somebody a filing so who cares if she walked away with her claim as long as the complaint has the allegations the filing that there was have you could not have relied on those notorious allegations if they're not in the complaint could not possibly have i mean that the artist allegations include going to lavish dinners with exhibits with the with the receipts with the doctors on the back of them my investigating agent and say go get me this false claim you have one of these false claims i want to look at what would the agent have done would he have gone there's no there's no identification of any transaction or even any particular doctor submitting a particular false claim they will have to go on the assumption that it's going on somewhere out there with they go look for i'm not totally confident but i get your point but let me let me try to proceed here and stop ok usually i would usually i would look at it and say dr phil jones filed on october seventh this prescription or this drug or report which lists the doctors lists the doctors with the number of files that they are submitting for reimbursement from the government and those six doctors appear in the rapid action so yes is that the by the doctor i can't get there i can't give you i can't give you you know deadbolt you know certainly that in the two thousand and six and the those those went off but they were filled out the doctors broke their patient doctor bottles billed to medicaid or medicare that is by definition she is a receiver of kickbacks and overseer of government funds so you now have one thousand five hundred seventy two reasons to bring this case back to the district courts of the prosecutor and think you may please the court my name is ellie peters i represent and then tech and roche holdings and we represent appellants along with my colleague michael wrote off who represents novartis and if it's if if it's agreeable to the court i to use ten minutes to address the nine p issue and mr wrote off we use five minutes to address the first file issue the district court correctly dismissed the garcia and kelly allegations do not amount to kickbacks and they do not connect to any false claim and if you want to go be as specific as possible i'll address the argument that was just made electric just two arguments that were just made this argument about statements of medical necessity when it was not an accurate statement made about what those are those are like prescriptions and every they are submitted to private insurers as well as the government they are not something which are in the issue of the submission of anything to the government those statements of medical necessity go to all insurers and we heard about this dr nori at the very at the very nori who really illustrates why the district court was completely correct here because there you have an allegation of a trip to the bahamas no time of when that took place you have this allegation that under the rapid action reports dr nori was a prescriber of xolair and then you have an allegation that doctor nor he was in rolled in the medicaid program dr dori could prescribe but there's not a single allegation that there was in fact a prescription that was reimbursed were submitted for reimbursement to a government program and in fact reimbursement to medicare and medicaid and this is this was fifteen hundred forty two viles between mid two thousand and five and mid two thousand and six that's just total prescriptions to regardless of but action reports are set forth the amount of xolair prescribed by the doctor the total amount of solar they don't specify in any way or suggest in any way the amount that if any that was for which reimbursement was sought from a federal program and what i was going to say in reference to the roast case was it talks about statistical evidence plus the factual or statistical evidence well there is some statistical evidence alleged in the complaint here that's that twelve percent of the total amount of prescriptions for xolair involve government reimbursement well that means that he eight percent of them did so if you're going to consider the statistical evidence and the allegations about dr nori refer to you have a trip to the bahamas you don't know when you have a doctor that prescribed solar who can refer patients to the medicaid program because that doctors and rolled in medicare in medicaid and that's it there's you are left to speculate completely speculate about whether or not you're or total amounts of solar prescribed by doctors for a particular time period so what you're left with is a situation particularly looking at the complaint and the twenty wealth helli complaint which judge young addressed with with care and procedures and in his sixty three page order he did go through the allegations that existed and then he found that there garcia there's really no specificity whatsoever that complaint there's nothing that could answer your honor's question if if in a usa turn to an agent and said let's go find these claims for reimbursement and there's no such allegation specific allegation in the twenty twelfth helly complaint either which would allow anyone to say how do we find you you have a list of doctors what do you make of that young statement that fraud was probable i think what he was referring to were the allegations of kickbacks and off label promotion that the allegations of fraud in that part of the case were certainly adequate he used the term probable but he made very clear in the next sentence in his opinion that there was no allegation that was satisfactory of a false claim of actually the filing of a false claim with the government which is allegations of of kickbacks under the any kickback statute which isn't privately actionable or of off label promotion that he wasn't pointing fault under nine b with those allegations but what he was finding fault with were the absence of adequate allegations of the filing of a false claim related to that conduct but how could it be fraud of the first we hope the final result because you would involve ever quest reimbursement by the govt could you go through that responding to the tele complaint why the you said the zen tech because the a complaint was not specific at all and then you said in general there was nothing in the tooth names of doctors who were submitting claims so so where were they wrong because there's no evidence in y or w of any submission of any actual submission of a claim they're simply evidence that there were doctors who were enrolled in the medicaid program who also prescribes aware and you go from the statistical allegation which is i think you're trying to address the roast cas by putting in this allegation that there's twelve percent but that amounts to the fact that there's eighty eight percent of the people who are getting where there isn't reimbursement from the federal government so why n w don't get the all they show is if there are doctors prescribing zoli or some of whom were rolled in the medicaid program a lot of those doctors there's not any allegation of what your honor and i were just talking about that there was  some back to them that there was some off label promotion that's why respectfully i believe that's why the appellant's focus on this one doctor nori because they can say well that doctor went to the bahamas and that doctor was a hyper scriver and that doctor wasn't rolled in the medicaid program but even that doesn't get you there because there's no evidence that that doctor ever actually prescribed  patient where there was a federal reimbursement and the statistical evidence would suggest that tightly likely that that never happened so the and when you get to the arguments that they make about about the proposed amended complaint given the procedural history of this case with numerous complaints filing dismissal the way not complying with court orders the passage of time since these appellants were employed novartis which is many years that judge young was well within his discretion in concluding that under the proper legal standard the lay futility prejudice that it was appropriate for good afternoon may it please the court my name is michael broke off and i represent a police novartis pharmaceuticals corporation of ours corporation as my colleague mr peters just explained that just require properly found that the two thousand and twelve complaint by ms kelley failed to satisfy rule nine being wholly apart from rule mine be though the two thousand and twelve kelley complaint should've also been dismissed for another reason the first to file bar of the false claims act and i agree with mr cornell it is simple the first to file roll bars a second declined key temp suit where one the second suit alleges the same essential facts as the first two thousand and six r c a complaint they conceded in their filings below that the suits are virtually identical and do not argue otherwise on appeal except for what i just heard which is that ms kelley took her allegations which are with her which is just not correct the garcia complaint stands against both genetic and of course but second there is also no dispute that the two thousand and six percy a complaint was pending when ms kelley filed are two thousand and twelve suit and more importantly unlike the situation that the supreme court face and k b r vs carter were discordant dad was the first filed action here mr garcia's two thousand and six remains pending today when the dismissal is being appealed because both of those requirements are met the leaders argue something else they argue and judge young found that because ms kelley had filed suit along with mr garcia she should be completely exempt from the first to file are related to wrong it's well established that the first to file rules or is a later derivative key temp complaint by anyone other than the government the fact that ms kelley was a relator in two thousand and that makes sense because they honor those decisions honor the plain text of the statute this court for example and wilson in duxbury make clear that the first to file bar is exception free the d c circuit court file a complaint and it has allegations the malcolm mission claims and allegations and there's b s allegations be then withdraws and walks away the complaint is not reformulated can a win on the strength of what's in the complaint that pertains only to be well if they could use authentic admissible evidence to prove those allegations but more importantly your honor those allegations placed the government on notice about the fraud and would bar a second row later right now i understand that the notice i'm trying to figure out the pending part asked her voluntarily pulled herself out of the two thousand and six case mr percy it was ordered not the poll or allegations about it but to just get rid of her name she didn't want her name in the suit you never complied with that you never f look at the complaint it's not as disconnected as mr cornell would suggest they were they were sales reps who knew one another they went to meetings together so conceivably mr garcia was present during alleged fraud with respect to not only and then tech work but also novartis they're not sort of they don't belong to one another visa v the two defense if i could just finish  second in fact a literal reading of no person is completely consistent with the supreme court's little reading last year in case your first quarter of the word pending in the very same first to file sense pending means what the support what webster's dictionary says it means as the supreme court concluded in the words no person in that same sense should not be interpreted to mean no person other than the related herself otherwise the lie on that case and