i'd like to start with the motion to dismiss because that was requested for a briefing and i think the st thing i would like to to to address which is covered in the pleadings which is covered in the briefs is there is no support for the party and it makes no sense it's no more because the dismissal means that it's no longer a party and i think that that's that's clear i would like to address this in one way that's not covered in the briefs i think or not will expounded in the sense that the united states government was present at these proceedings and and is a party currently because we can and we know that because the united states filed a motion to set aside and prior to that motion for set aside the united states do not have to appear intervening because it was currently a party in other words on the motion sensor side the motion for senate side is relevant because it demonstrates the united states participation or active interest as a party in this litigation well it seems that one can argue that the district court just neglected them to make them file a notice of appearance as a rd party asserting an interest right i mean i don't think that's going to solve this this problem there's no there's no case in this circuit that resolves this right that is true and i this is a this is a case of  impression in a sense but what what we're seeking to do what the what the defendants pelleas are seeking to do in this case is to create a go from a a bright line test which simply says if the united states intervene in the action which is consistent with the eisenstein decision if it intervene in the action now it says well it has to intervene as to the current pleading and part of the problem here is what happened isn't really consistent with the statutory scheme in the st place in other words three thousand seven hundred and thirty provides a government may elect to intervene and proceed with the action refers repeatedly to the action which suggests that the government once and intervened is basically in the action for all purposes but the government here intervened but purported to do so only for limited purposes and then purported to decline to intervene with respect to the later amended complaint how does that square with the statute and if it's not square government is not party i mean you're looking to you're looking to the you're looking to the status of the government as it exists here and now right and you're looking to the united states government party their involvement was all right we know that that was that was the argument that defendants made and there is no there is no pleading that shows or demonstrates that the united states was not or that terminator ceased to exist as a party or you know it simply involved in the operative pleading correct the united states is inclined to intervene but your honor i would i would stay i would say to the court that to the extent that this court is going to create a new rule that makes an exception to the very bright line test that once the government intervenes it is then a party and says it has to be the current pleading it must be the i would i would say the united states is here present at this argument before the court of appeal so a common sense i mean explain to friends or relatives or family who are not familiar with the law that's one sees can be a party to this so that that should but it but the but but the point i'm trying to make your honor you go back one minute ago you said that and then is no longer a party that was dismissed so it was dismissed by the stipulation filed with the district court correct that's correct why did that stipulation not terminate the united states is a party to since it's intervention had been limited to claims with respect to amgen alone it was never there's nothing in the situation that says the united states was dismissed there's nothing there th continued to monitor and be involved and was still served with all pleadings as any party would but not having an interest so the idea that there so if you look to the st parameters the four corners of that agreement and how it was entered into  district court there was no actual dismissal of the united states if i may i do want to turn to the larger issue because i do think this is thing and i want to focus on the united states really would versus alladin case and the st to file rule and i want to focus on two issues the st issue is that would talks about for all three plaintiffs or all three cases free cataract surgery recovery kits or patient post surgery supplies in other words the would case has the same factual issue for each of the three cases in other words would is stands for the proposition that when you have the same essential fact you know you have a st to file issue and there is a dismissal of the later cases here however as we point out in the opening brief there is a very broad statutory scheme very broad century scheme that involves the active participation of the medical providers and suppliers and groups in the hanks case versus i hub and spoke theory of conspiracy it's merely makes an allegation as to one individual defendant that is guilty if you will of participation in but does not flush out the active participation that that particular defendant the nd issue and i think this is actually the most important part here is that the district court improperly expands would not just in terms of factual allegations but also in terms of defendants here again i would ask the court to limit would to any defendant so even if you find that the same that does not mean any of the other defendants here at issue are part of that same fraudulent factual scheme and most importantly under you is next time you name a new defendant that that resets the whole thing  imagine tanser your answer that yes because the reason is that it's not a related action your honor and it's not really an action under the case law and there's ground for case law that says that the key issue in terms related is the whether there's a language applies here yes and nd do you agree that it's the plaintiff's obligation to plead and ultimately prove the existence of subject matter interest action yes and if that is the case can the district court basically punt on that question and say that it's not clear from the pleadings whether there is something doesn't that require him to either dismissed for lack of action or at least grant leave to appeal to clarify the and its and its unusual decisions i always say what i would tell the court here is for purposes of the public disclosure there is a requirement that if you're going to find if you're going to find a public  and before reaching the correct i agree your honor so that that would be on the district court but i would say to this court right that i think the point is should we be affirming on other grounds i e the lack of subject managers stiction because of public disclosure that's i think that the issue that well that that that could be but your honor but the crucial difference is that you would allow leave to amend and that would be a requirement you can do i don't want to go into the merits i can do that if you want sit when you got here didn't please the court to hear that a for the united states which is not a party to the appeal but was a party to the suit below was a part was about now are you a part of yes your honor for purpose circuit has so held and it's a and the th circuit has held so held in related contexts and that the eisenstein case basically stood for the proposition that if we'd ever intervene were never a party but once we are a party then it becomes r d always a party and it's a factual question at that point and you look to the terms of the dismissal order which in this case did not dismiss the united states i think if it had we would be in a different position here we would be saying well we weren't we are our party status was formally terminated by the court here if you're not an intervenor then what are you we were just an interest well you weren't intervenor with respect to certain cause of action against amgen that was settled so what do you at that point you just sort of an interested by stander that still party you remain an intervenor with respect to claims that were settled and we have the right to can to intervene and are presented with that right and expressly disclaim it on multiple occasions on the record as to each amended complaint which brings in new defense the government is now here in the suit getting served with process as has been noted and formally coming into the court and saying no thank us to this we will not intervene as to this defendant and a nonparty wouldn't have that right we wouldn't be able  to party wouldn't have that right you by virtue of the statute have to be notified every time they're trying to bring one of these claims every time there's an amended complaint they have to go to you to see if you want to jump in you don't have to be present at every status conference in a proceeding in which we have not intervened to express our continuing choices as to intervention perspective well you have two minutes after make a choice every time the whether you do it in the courtroom or you do it from the comfort of your own home i don't think really matters much but you not your honor we think it does you think it does why because once you're a party you're participating in the court proceedings and before you are a party you are in fact making that decision offline as it were the government has a statutory right to intervene at any point in a false claims act proceeding but until we do we're not a party and horizon stein once we have as here united states declined to intervene and currently only monitoring the action that was a fair statement of our role at that point your honor it does not disclaim our party status we were monitoring and by the terms of the dis order only the defendant with whom we had settled was formally dismissed from the action we remain a party if nothing else under the express reservation of jurisdiction in the district court to adjudicate eventual fee disputes which as has been because its interest in this matter has been resolved at the district court so concluded the facts are would be different and we would have to intervene again but doesn't that suggest that the retention of jurisdiction to adjudicate any fetus buttes is irrelevant to the question not where the without a difference on the facts that had there been an express dismissal of the united states it would be a lot more difficult for me to stand here and argue that we remain a party absolutely but i don't think we can discount the express reservation of jurisdiction because that contemplated further activity in the proceeding by the united states and the case law fairly uniformly agrees that it's ongoing activity by the united states it's not contemplating any further disputes between the united states and jen and later the potential involvement of the united states going forward is with respect to the relator only on the face of the stock and i'm with the court's permission i'm going to address the timeliness issue and st of filing mr kraus will address public disclosure and rule nine be that the appeal here was untimely because the united states was not a party to this case at the time that judgment was entered and i think the history here is important the government intervene for a limited purpose that was to settle with amgen and then declined to intervene more broadly but that's not all then there was a rd amended complaint in which the u s expressly declined to intervene there was a fit the men did complain in which the u s expressly declined to intervene as the courts have held that both this court and the supreme court held in eisenstein even this decision of whether or not to intervene would be unnecessary if the u s was already a party so the u s decision not to intervene meant that it was not a party doesn't the united states have a continuing interest that's being expressed and manifested right now while the u s has said in on page twenty two of its brief that it's a party to this appeal only with respect to the court's jurisdiction over the set off motion and this court has already held it doesn't have jurisdiction over the south motion now of course the u s is a real party in interest in all key tam cases that's the argument that was at issue in eisenstein and was rejected as a basis to give it party status what what matters with the for eisenstein is intervention and here with respect to the operative complaint the u s declined to intervene the u s ask to be exercised its right under the statute to have get copies of the pleadings but i can sign held that too would be unnecessary if the u s were already a party because you would automatically have that right and you can you answer the question that i asked which is how do you square that with the language of the statute generally the statute speaks about intervening in an action which would suggest that once it's intervened it has remained it is and remains a party unless and until it's terminated and in that regard you know all of that submissions saying we declined to intervene in this particular claim this particular complaint those are sort of you know almost irrelevant because they're not contemplated by the statute and the response of yesterday and i think the answer is that it's consistent with the settled rule that and then did complain renders everything that happened beforehand basically irrelevant it resets the case and what happened here and what happens in these key town cases is when there's an amended complaint it's filed under seal the u s gets it sixty days to decide whether to new action at that point i mean yes it supersedes the park complaints but for instance in winner versus al or you can't cure the st to file the fact by amending the complaint it's not treated as being wrong or a new action at that point when the same principle applies here i don't think so your honor and i thought and so that's certainly not the practice and i think that would be contrary to the whole purpose of the sealing requirement which is to not put a defendant on notice of a claim until the us to side has decided whether to take it over when there's an amended complaint that adds defendants that adds new claims the u s needs time to look at that and that's why it's for the consistent practice is that it's filed under seal and that sealing requirement is tied to the intervention decision and here in both cases the u s declined to intervene and that that benefited the u s it wasn't subject to discovery this is another point that their court made in eisenstein is that there are costs and benefits to being a party and that's why congress gave the u s the choice of whether to become a party through intervention and one of those costs is that being subject to mandatory discovery and so i think it would be the u s might they're here today saying there were a party but the implication of that is they would be subject to mandatory discovery even in cases where they've declined to intervene and be a better rule you know to avoid traps for the unwary which is another principle that you see in the court's jurisprudence to just say once the united states has intervened it remains a party unless until it is formally terminated by the district court in that case you know if a corner of the opposing party sought to you know impose the duties and responsibilities of party status on the united states the united states could rush in and say your honor we you know please terminate us as a party we're no longer a party your interests have resolved but if it doesn't do that why why isn't it a better rule just to say once the united states has intervened it remains a party for all purposes and or for purposes of reform unless and sells germany two point zero one is our rule is also a bright line rule did the u s intervene with respect to the operative complaint nd there's no trap for the unwary here in this was at issue as well because the if there's any uncertainty all you do is you follow the notice of appeal on day thirty you don't wait until day fifty one as a relator here did so and that's a ministerial easy thing to do if i could shift very quickly since my time is limited to st to file i think the district court was got this exactly right the if you look at that p s intelli complaint and compare it to the original complaint in this case the allegations as the district court held are basically identical with respect to unreported discounts with respect to marketing the spread with respect to off label promotion with respect to this just identify some of the ices basically in work were pocketing the spread the same allegation in both cases and p s intel made that allegation with respect to a corporate affiliate of my client actually and relator here  has as just alleged new customers and i and i heard him suggest that a relator can always get around the st of file bar by just simply suing different customers here or there of course hundreds or even thousands of amgen customers and i would suggest one relator could ser through and avoid the st to file bar just by naming new customers and i think that would circumvent the entire purpose of that rule which is to incentivize relator as with information to quickly go to the government and provide it so that the government can investigate and stop we supposed to do about a joint motion by the united states and hanks to remap and well that motion has already been denied jacob so i think it's that's that's taken care of because it was a collateral issue and i got denied by home and when your owners lawrence krauss i'll speak public disclosure and then on nine b with regard to public disclosure it is clear that the this record determined correctly that there had been multiple public disclosures of the essential elements of the claims that mr hanks is bringing and therefore the public disclosure bar applied now having done so it's mr hanks his burden to establish that he is an original source and that's where  the district court did some work with didn't do all the work you could have done or should have done and i think it's important to note is that in original source there are two criteria that need to be satisfied both of them need to use be satisfied in order for the related to be the original source and one of them is that he voluntary provided voluntarily provided all of the information necessary to the united states before sat before commencing the action and there's been nothing in his complaint which suggests that he satisfies that jurisdictional requirement there's nothing in the declaration that he filed after we moved to dismiss below in which he was trying to establish that he was on the original source which makes any reference to the fact that he voluntarily provided the information to the government before commencing the action you're correct on that front and putting aside the time and us of the appeal question when there are proper remedy be to remain and grant leave to a manner with their actions to dismiss without prejudice well your honor i would say that there is no basis to ammend because he's already on his th amended complaint he already filed a declaration in order to carry his burden in the district court and try to actually establish that he was original source so that or have that opportunity to do so would not be our call or that be the district court's call i think it would be the district court's call and i think that the issue is that  e there's a number of different grounds here by which i believe the district court can be affirmed the st to file meant that he there was no action pending by which there could have been an amendment but there was no jurisdiction not  have to address st the public disclosure rule which at least in the pre two thousand and ten incarnation which applies here is a jurisdictional correct as as mr henning agreed as well so the separate and independent ground that under the statu relator as being voluntarily provided the information to the government before filing an action is simply a bright line rule very clear nothing in the record that suggests that they  direct and did not have direct an independent knowledge in a way that would require that he or would have carried his burden of stablish ing his status as an original source with regard to nine b  it's a nother grounds that the case should have been dismissed on and was dismissed on the court the court correctly determined that mr hanks just didn't satisfy the requirements that recently the court identified in charges as satisfying the nine b burden that he holds so as part of what he needs to bring these related needs to bring the is allege that allege all he knows that is not the law he alleges that he or he claims that all he needs to allege is that all claims are false and that that somehow gives him an out from the and b these exceptions are not in the law they're not in churches they're not in the case is that of churches and if they were they would swallow ninety churches instead requires that the relator identify the statements that he contends were fought fraudulent identify the speaker state when and where the statements were made and explain why the statements were fraudulent which is especially important here since as the court knows we have an independent ground that the discount the discount safe harbor meant that we were not  fraudulent the district court correctly held that religious broad brush approach to pleading was not one that satisfied nine b he lumps together eighteen defendants and alleges their participation jointly he lumps together seven federal health care program programs and just says that all of them were defrauded he admits he cannot allege a single false claim that was actually submitted he alleges hypothetical facts and he doesn't even allege any particular certification that he claims was violated so none of this is like the facts in churches which described and discussed whether there could be some pleading on information and belief with regard to submission in churches there were specific game balance runs that were identified with patient names dates times patient condition all of which led to the court determining this court determining that there was sufficient factual basis to allow the relator to plead on in for on information and belief to things that there was a strong inference that claims actually had been submitted and that  the information was particularly in the possession of the defendants so none of that the relator needs to come forward with the predicate specific facts even to get to that strong inference i don't know whether you are  as to the issue of timeliness your honour's what i would suggest is that to the extent that this court is going to say that they're creating a bright line rule that mr hank should have known this is a question of st impression so the idea arguments as it may be harsh but that's the consequence of them so why should we care about that but i think i think it's a practical thing as a practical argument your honor and to the extent yes there are there's a harshness to that but the idea here is that i'm just trying to i'm just trying to i'm just trying to from ice perspective here this is a case of st impression before i understand why for your purposes it gives the harsh to say i'm sorry was untimely but surely just because you didn't have noticed doesn't mean we should establish a rule for time immemorial that every other party can you know take sixty days to appeal in the circumstances if that's not actually the proper interpretation of the rules but but but but but but you are  to the idea that it should it's an obvious rule it's not enough this rule defendants are asking you to create a rule that's not an ice and stein that is not a reflection of the bright line test is not consistent with the united states government's approach and further is not consistent with the plain meaning of the statute i mean yes it is it is it is a to the extent that you're saying now that it has to be that if united states was a party at the time of the  dismissal even here we can say that that was the case simply because there was no dismissal of the united states i mean the engine was dismissed the united states never was so i think that that clearly speaks to the concept of the united states being a continuing party in this action going back to the public disclosure bar there's no allegation in any of the complaints that you're are provided voluntarily providing information to the government about the scheme correct that is correct your honor if we agree that there was a prior public disclosure does it not follow that we have to remain for lack of subject matters direction because there's no time the pleading that in the th many complaint has been actually attacked you know when the complaints are under seal that's not an issue for the government's the government's purview in terms of investigation so that's a simple matter of oversight on my part and i want to take ownership of that but it does not mean that it cannot be cured and at least easily cured with him and so i asked if it is it was it not mr exposition that he made disclosures of the govern