good morning your honor may please the court ryan downer for related repellents craig mckenzie and curtis lucky this case lucky to present a different question under the false claims act that was resolved in lucky one for that reason the preclusion doctrines do not bar this action lucky to know you in the first suit the allegations in that joint declaration when fully into what you allege in this suit we introduced the joint declaration as evidence your honor we are part of the former job record it's part of the summary judgment record but it wasn't introduced as allegations in that case and we appealed the finding in the first case to this court  held that that information had a quote differing focus then the allegations at issue and locky wondred which primarily focused on the city's failure to a firmly further fair housing it had a different focus and so this court did not consider in your birth petition specific client that you might hear all the the public disclosure and original source issues are distinct and i can tell you exactly why the lucky one court found five specific sets of disclosed the locky one allegations about a firmly furthering fair housing the lucky one court also found that related or not the original sources for those five public disclosures or for three of those public disclosures not for two of them three disclosures identified by the locky one court fully do not apply to the lucky two allegations which are specific to the l t v the city's conduct towards the l t v project but the lucky one court also went through your the specific allegation you're making here about the meeting with the city representative it went all through it went through the joint declaration which had that information that we introduced as evidence of the locky one allegations of firmly furthering fair housing fraud it did not consider the intentional discrimination allegations which we submitted in an amended complaint that was rejected by the court and this court on appeal said that that information had a differing focus that it was not concerning the firmly furthering fraud that it only concerned intentional discrimination those oppose your title seven plaintiffs and here is suing and in a class and saying this employer has a pattern and practice of racial discrimination and you lose but as part of the summary judgment evidence you said i'm in particular employ a had this experience that used code words improved he was discriminated against and the court still said you lose could you then file a separate suit on employee no that's not this case roger and i know the reason is that the substantive issue and lucky one was never reached there's been never been a determination on the just all of the third occasions in one case and one particular set of certifications in the second case doesn't mean it's not the same case well the relevant president says that you don't look at the highest level of generality to consider whether or not the allegations in the complaint are publicly disclosed there are certainly similarities between the allegations in lucky one and the allegations in lucky two they both concern the city's failure to comply with the civil rights obligations but at a more granular level which is where the case law directs us to look the locky to allegations discuss specific issues of intentional discrimination the first complaint alleged to conceptually different fraud it focused on a failure to firmly further fair housing in over twenty different city programs and made reference to zoning decisions to hurricane katrina to census data this complaint is purely about the real leaders experience wouldn't that evident to me this is plain say you had every ability to bring the locking to allegations within locky one in fact you didn't do that and so i don't see why you didn't why you're not barred at this point we attempted to bring this exact case to focus specifically on the l t v related intentional discrimination allegations in the first case we were introduced as an amended complaint we were precluded from doing that even though we were in the statute of limitations so to date there's actually been no determination by any court that the locky to allegations have been publicly disclosed it was part of the evidence that was held not to create a back here in regard to lucky one on the conceptually different issue of what is there a fraud  any in a general and broad and global sense but the case law including a little v show which was just decided by this court three or four years ago it does or it directs us to look at the specific allegations and compare them to what's been publicly disclosed tried to bring this claim in the first action it was not deemed material to the specific allegations in the first action we came to this court and this court ruled that it had a differing focus also the claim here that we're dealing with and we have to emphasize is the public disclosure claim not the substantive merits claim similarities between the substance merits of the first case and the second case are not particularly relevant here because there's never been a ruling on the merits of the false claims act question what there's been a ruling distinctly separate case and little b show asks could you reproduce the complaints allegations from what's been disclosed and here you could not do that let me just ask you as a practical matter you're talking about  nearest you know grocery store i'm not certain of that but the point of the well i just wondered because one of your major i mean it seems to me your only quote smoking gun allegation is that the guy said this is not part of our vision for downtown dallas and and you say that's a code word which oddly enough we just had in in another case involving a little suburb but not for racial purposes but anyway  assuming it even assuming it's a code word i don't understand well no i'm not assuming it's a code word because it could mean why would low income people want to live in the middle of downtown dallas if they can't get their kids to school easily well the reason that people want to live in downtown dallas is not at issue here i think there are very good reasons for why low income minorities would want to live in an affluent area with access to better goods and services that's the substantive claim  the case but there's been no ruling on the substantive questions and they can't be a basis for a state of kata that's going to be an issue on remand if we get there for the district court to determine the second substantive step question of was there actually a fraud in the government did this constitute intentional discrimination and judge jones i do believe there's actually much more evidence of the intentional discrimination there are several comments that were made but again this is strictly about were these allegations publicly disclosed and are related to the original sources for them in the answer to both questions is that they are different those we answer those questions are different the bottom line is this if lucky two it had been brought in the first instance the public disclosure finding investigative report about this particular development yes the twenty thirteen hard letter i think you're referring to was an issue before the court we brought it to the court attention and this court told us that that information including the l t v prominently including the l t v allegations had a different focus and so now we've been put in this box where the information is there a based on they where you can when the federal government is investigating some something you can haul in and ask for treble damages on what the federal government is investigating well that is the defense is very specific it has to be a civil suit or civil money money penalty proceeding by the government neither occurred here and the government has to be a party to that suit that's also not true here hud investigated at the real leaders request the relator l l c was a party to that investigation or that complaint and and the city was the other party so there's no preclusion based on thirty seven thirty because of that there was no smiley sought in that proceeding by hud there was no money gained or obtained by hyde and the department of justice has a full right to investigate claims of fraud that are distinct from the claims of f h a violations that hud was investigating but so i'll switch to the specifically allegations were based on your idea that they were discriminating your fraud is that they were discriminating right yes but they're just stink statutes in the distinct causes of action than that but lying is lying when you call it fraud or intentional discrimination well the lying wasn't based on intentional what is the point is that the line wasn't an issue in the hot investigation it was an issue was is the city actually complying with its obligations there is no issue preclusion here because the two issues between the cases have to be identical and they must have been actually litigated if there's any doubt as to any of those elements you don't get issue preclusion and only one issue decided in lucky one the public disclosure bar and as i said before the f d a divides that into two steps the predicate public disclosure question and then the substantive question we only got an answer on the step one question as to the allegations in l and that's for fully consistent with this court saying that the locky one allegations have a different focus than the allegations we're bringing now so now we've brought this second action because it represents a different public disclosure issue finding that the public disclosures in lokki one are the same as the public disclosures and lucky to it has to make that finding it didn't make any public disclosure finding at all it jumped to the original source question which it could not have done properly and the reason that's important is that the five public disclosures listed in lucky one do not implicate lockie to his allegations in the same way and in three cases they don't implicated at all so that's why it's important there are five disclosures i'll go through them briefly five disclosure identified in lucky one the walker the city of mesquite case the affordable housing projects report card budget and housing documents and then relator two thousand and ten hud complaint and a june tw ten article in the newspaper for the first three of those the walker case the report card and the public budget and housing documents those documents do refer to the city's failure to affirm a furthering over a period of years there's i believe one paragraph in the first complaint that makes passing reference that's this court's language the first complaint and lucky one makes a passing reference to the l t v project and really has experiences the joint decoration goes into some detail and we and i don't dispute that we introduce that as evidence of the fraud in the first case of the firmly furthering fraud that court said it didn't matter and this court said it was too different from the subject matter of lucky one to matter so now we've been put in this box where in the first case that information was too different from the allegations to matter to the outcome and now we're being told by the city that the information is too much the same as the first case so we're still in this position where we have not had any ruling on the public disclosure question in lokki two were these specific allegations publicly disclosed and we're readline i'm sorry your honor thank you very much matter over and over again this is the second false claims act related concerning their failed bankrupt project that the city denied funding when they were facing imminent foreclosure hadn't paid real property taxes for two years and represent to the city the value of the property was over seventeen million dollars when in fact they had obtained an agreed judgment with a local appraisal district that was just had a value of just three point five million dollars after the city denied funding they sued under lock he won he won was dismissed for the public disclosure of our this court affirmed forty days later after a mandate was issued by this court they filed the second lawsuit the only issue for this core is whether the same issue or claims are presented in the walky one unlucky to the plight of can't escape the preclusion of facts by urging new theories new legal arguments or even presenting new evidence but here we don't have that situation the arguments or the saying the evidence is the same because our actions are the same the theories and arguments are all been repeated and  only difference was the caption in the case the court of appeal i mean the district court denied leave saying recognizing it was an attempt to confer jurisdiction and the district court said he had the power to remedy defective allegations but not the power to report remedy defective facts we have defective facts here they have royals have provided no explanation as to and everything but it's a year contention that this is claim preclusion or issue occlusion it is both your are all right and what what what issue pertinent to lockey two was litigated  court in addressing that didn't decide whether or not it was a firm or a defense or jurisdictional issue made the decision to treat it as an affirmative defense apply the summary judgment rule and granted us really as a summary judgment see what i don't quite understand here is but they are bringing this free floating cities bad city discriminate in all these certifications and shouldn't be getting federal funds as a false claim claim and the court finds that there has been public disclosure based on these past events and then we affirm summary judgment on that but the quote the nature of the disclosure is completely different from what they say happened to them individually what why isn't that argument valid your honor because  and this court addressed their claims of handling and we said those are different you know what the court said was those were surplusage can be joomla two of of what all the other evidence of public disclosure had already occurred when they're talking about there only being five pieces of documents or five documents that were publicly disclosed that is inaccurate the district court in walk he won there were voluminous hundreds of pages of documents to support the public disclosure the court the district court said those five documents were the most glaring that was not the selective yeah but then they offered their joint declaration later after it was in in part it was in response to are the motions to dismiss and i'm lucky one in lucky ones are ok so and that went up to this court also right that is correct ok point of saying it's not exactly it's a different focus in two d i think when this court was addressing the motion to amend the judgment it was specifically referencing the  v tower and that it was cumulative of what had already been disclosed so i think there are the courts in the district court you know wrote four different opinions dealing with this this case and it three of  it discussed their personal involvement and in those three opinions it also talked about the allegation that there were that the city was intentionally discriminating even in their original complaint they said i'm just trying to see if i can find  quickly is that we were the city was intentionally trying to prevent them and trying to well suppose we were to go suppose we are firm here and then they go back and they file locking three and locking three has to do with a particular project that occurred during this general time frame in which they had personal experience or something like that you would be making the same would your argument would be claim preclusion they're right repeatedly said these are different allegations they're not different allegations the three differences they talk about were that they claim that they did not raise the issue of certification certifications as page funds based on false premises of certifications made by the defendant that they had complied and would comply with their respective eight page and other civil rights obligations when they came back and filed this action paragraph ninety the complaint page twenty six of the records alleged through actions alleged here in the city fosli induce the government to approve and pay out block grant bond based on false premises and certifications made by the defendant dealing with the city's failure to firmly for their fair housing and one of the issues we haven't really talked about and they certainly don't talk about is that if we're going to talk about claim preclusion then we'll talk about trans was that the fall of the city fosli representative was in compliance with the civil rights certifications and summarized the district the relator is content of the public available information merely demonstrated noncompliance while their personal action confirmed intentional a rigorous and demanding task that mere compliance or a regulatory or statutory requirement of compliance for as a condition of payment is not necessarily and so that if the court looks for an alternative ground to affirm this if we get that far we would request that the twelve be six based on the failure to allege material of the granted let me conclude just by  reciting a little bit from a supreme court decision nearly eighty years ago and stole the go to three o five us one sixty five the court there said after a federal court has decided the question of the jurisdiction over the parties in a contested case the court in which the play of race judicata is made has not the power to inquire into that jurisdictional fact the court continued it is just as important that there should be a place to end as there should be a place to begin litigation after a party has his day in court with opportunity to present his evidence and his view of the law a collateral attack upon the decision as to jurisdiction they're rendered merely retr like to address directly the claim preclusion issue the transactional test and the common nucleus are just ways of asking could these claims have been brought in the first action and the answer is that we tried to bring these  independent claims in the first action we were precluded from doing so when our many complain was not considered we brought this information about the project as evidence of our first case but this court said that that information had a different focus than the broad allegations of affirmative furthering fraud that we allege in lucky one the district court said it was but this court said it was different in focus so this is not a situation like a classic race to get caught a case where we have held something back from the co and now for the first time we're trying to introduce it we attempted to put this information before the court we attempted to put these claims before the court and we were not allowed to do so in the full way that we should have been allowed to do that and i mean when you say circuit fifth circuit's opinion it was pretty clear that this was different in kind this information was different in kind and so that makes this a different case we weren't permitted to bring these allegations the first time around and now we are before the court trying to get all we really want is a ruling on the public disclosure and original source questions in the first instance if you put if you put the declaration in your former judgment  worked in instead that that information was not material to the decision but the computer but those were not that information was not before the court as allegation so it wasn't part of the claim it wasn't part of the umbrella of our nation when you put  disclosed in the same way that it it should have that makes this case different because this case focuses narrowly on what the real leaders had original independent knowledge of does not have information about the zoning decisions and the other decisions that the court found were too broad too broadly construed i want to respond to mr estes point to the city's point that there was no there was a judgment on the merits there was a judgment on the merits only of the jurisdictional claim or the predicate claim of the public disclosure bar there was no judgment on the merits as to the substantive issues which are admittedly quite similar they're similar but it doesn't matter because there's never been a ruling on those issues there's only a ruling on the jurisdictional question and it does wrap up with the merits of the case because in order to consider the public disclosure questions the court necessarily has to engage in a fact intensive inquiry looking at the same documents it would consider for the ultimate question of whether there's a fraud i'd also like to add your honour's that this information materially adds to the picture in the language of reagan it materially adds information about the fact that this city's actions towards segregation were not just acquiescence to an end and having a billet he there was intentional perpetuation of segregation that's what the crux of the claim is in the second case