here with us in the courtroom today and i think the record before the court is very clear that the district judge in this case when faced with this very  for dismissal for lack of subject matter jurisdiction under rule twelve b one was uncomfortable with proceeding with evidence or hearings in the case and allowing the case to proceed to determine who did what when without saying the case up here for clarification as to whether this court's ruling in the loo hunt three case written by judge silberman  d any inquiry into the facts of the case because of an rule that was so absolute that no matter what the surrounding circumstances were there was no possible way that dr campbell could prove that the court has subject matter jurisdiction and allow him to proceed because of the this court's interpretation of the application of the first to file rule in that lou hunt decision you know we ask you just before we get into the interpretation of look at me very straight or hear myself where we are there is a separate lawsuit going on before another judge with pari and karate and  or that's correct you're on another case in front of another judge with another case number separate action well that's correct but what i don't understand is and help me help me work this through by what right does dr campbell have to start his own case york times doesn't necessarily change the requirement that the cases be filed under seal so what we have then is nobody you don't know we filed we don't know they filed we both file underseal we both send our stuff to the tourney general in washington and then we are then notified by the justice department that we are each notified that there is another pending case and i was notified by the justice department in december when i took over representation of dr campbell after his case had been filed by another attorney that there was another pending case that was filed it was filed three days before our case was filed and that the justice department was considering taking the position that the first to file bar would ultimately destroy subject matter jurisdiction and dr campbell's case however we continued to work with the government in their investigation because by then they had convened a grand jury dr campbell and i prepared an extensive disclosure statement for interest that we worked with the u s attorney's office we provided a wealth of information during the the time period that took place after that then in may we filed an extensive amended complaint that incorporated all of this information that dr campbell had assembled before that he had given to the f b i and so forth and once that was done before any their position was is that the existence of those five sheets of paper in the court file in the same court but pending before another judge was fatal as a matter of law no matter what the surrounding circumstances  standpoint on a rule twelve b one motion all of our allegations have to be construed as true and all evidence that we tender has to be construed in our favor because the motion can't be granted season but my impression is that that refers to factual allegations rather than legal conclusions yes ok so you've made you the legend a legal conclusion that karate ins are good do not have standing they don't have to assume that's true that tendered all of the evidence in support of what dr campbell dead and the f b i affidavit describing his extensive contribution to the government's effort was before the court isn't it possible that you could have two or more original sources you can have two more regional sources absolutely what you're really telling us is that campbell was a better original source and that's a really good point you're on and that's exactly what we are not telling you we are not telling  i'm a better original source i am an original source and therefore even know another original source file the first i should have and there should be an equitable exception to the first to file bar that would allow me to share in the relat public disclosure only the first one can receive the award you are absolutely correct about that and we are not saying that any because of everything dr campbell did he has an equitable right to recover  congress congress created this first to file rule and said that a pending action is fatal to all subsequent actions now the question before the court is what is a pending action and the question before the court is did congress reasonably intend there to be some minimum threshold that a pending action would have to satisfy before as a matter of law it would be fatal  subsequent cases that were filed why isn't karate why aren't corrupt peons or good regional sources your honor that is not an issue before this court because at this stage we were asked the judge leaving me alone for the purpose of the motion that they could not satisfy qualifying and the order that's before this court says assuming they cannot qualify and assuming that there is no subject matter jurisdiction in their case their case is still pending action is fatal to dr campbell and the issue before this court is is it necessary for a pending action to be an action were filed by someone who can best the court the subject matter jurisdiction and enable the court to go forward in order for that complaint to be fatal as a matter of law to  court and can always back down an up and down and chewing or was a viable whistle blower and his complaint informed the government of the fraud and triggered the investigation and the distinction here is that disclosure i mean they did not contribute anything by filing the complaint that and well here and therefore for the purpose of finding the complaint at all that the real contribution of the government seems to have an asked the court to assume the cropping observer would be dismissed and would not receive an award and that was the basis of the order and that was the status of the proceedings at the time of the just dismissal and the judgment before this court was entered later in order to prevent me from arguing before you that the government shouldn't be allowed to use a bad this case to knock out a good case and then knock out the bogus case and avoid paying anybody the government put the fifteen percent on the that intentional the intention was announced in that they told the district judge that they planned to file a motion to dismiss the karate case the judge in the croppy case judge shop kept extending the deadline for record absolutely absolutely there's no question that that was the government's strategy was to use the temporary tendency of corruptions are going to knock out campbell and avoid paying either one of them a what if that was what was the whole it was their strategy the fact of the matter was seen through to conclusion and resulted in the judgment signed by the judge judge in favor of these guys for eight million dollars no that's not true your honor not let me tell you what happened after this case was  happened there was that after this case was pending on appeal the government just announced that they were going to put eight million dollars on the table but it was contingent on the outcome of this appeal depending on who was later dismissed and that they would not have ever received the money and that the government would have been able to use the first file rule to avoid paying anybody a whistleblower and that would be an and so the judge shot didn't approve eight million dollars to croppings or anything else that whole issue was up in the air pending the outcome of this appeal and so for the purpose of the status of the record at the able to avoid paying either one but really the question here is is does congress must this court in congress required some minimum threshold for a know that if they were just anybody they were just opportunistic plaintiffs if they were just some bozo off the street the government would have moved to dismiss them the government has indicated to judge levy that they were planning to mean i'm talking about the judge before whom the case is pending if they if they thought these guys were were were just clowns trying to get bunch of money from the government for no reason can we expect them to have brought a motion to campbell case in which case then we'll have to pay the eight million dollars to whoever is determined to be entitled to it in the government have an incentive to tell the judge these people are not entitled to any money if if in fact they weren't legal purely legal issue of whether the false claims act first to file rule is indeed exception free as the court described it in lieu hon or whether just bite the plain language of the statute it has to be given a different nokia cases filed until after a public disclosure of the facts of the alleged fraud we say that the broad rule with the court articulated in lieu hunt three is equally applicable on the facts of this case which is where two key tamra leaders came forward after a public disclosure and where the second key tamra later contends that the first will eventually be dismissed for lack of subject matter jurisdiction supporting our reading of the statute are the language  which i'll talk to you about the history of the amendment to the false claims act and very important practical considerations about how the statute works both for the government yes i'm very troubled by the government the first is a viable action we do take the position as you can see in our brief that a complaint has to be adequate under rule nine be in order as and that's interesting because that contradicts directly your position think it really is a question of of elevating a procedural rule over over subject matter jurisdiction ninety and the five but i should say the four which is the jurisdictional provision you concern very different sorts of requirements nine d is what's in the complaint what's on the face of the complaint does it tell you the what where why when of the fraud efore is not about how how much or what about how the relator came by that knowledge and i think if you look at subsection b five the first file rule you can see in the language of the five is sort of the roots of this distinction that we that we make if you look at b five it says when a person brings an action under this subsection no person other than the government may be intervene or bring a related action based on the facts underlying the pending action if the complaint is inadequate under rule nine b if it doesn't state facts that tell the defendant eventually when it's no longer under seal and the government initially what this is about then it doesn't even it can't trigger nine b which full disclosure to the government of all the facts that he knows about about the alleged fraud the government makes the determination of is there something here we want to investigate and if so it moves ahead and it does that that's that process is very important to alert the government warrant served gather the evidence so the complaint ordinarily that's the case the government gets alerted by the complaint but in this kind of context the complaint is not telling the government anything that it didn't already know your honor i would agree with you about th of this particular case that is true clearly it's the government itself that made the disclosure after the search warrant has been executed but i think the court has to be very aware that while some public disclosure cases may follow this model this court and other courts of appeals have determined to be public disclosures are not events that by any realistic calculation would be thought to bring something to the attention of the government for instance in the a one ambulance case that we cite in our brief it was decided by this court the court determined that it was a public disclosure within the within the meaning of subsection efore to have public hearings in monterey county about the public building of a contract for emergency medical ambulance services and the question there was whether that was a public disclosure of the basic allegations of the fraud the court said it was i don't believe there's any real reason to expect that that kind of local hearing initially had doubts about never made any formal filings in this case or in the unusual for the government to file a motion to dismiss on ninety grounds in a case where they were later has come to with with a complete a complaint under seal in a public disclosure that reveals information to the government that it thinks it's worth pursuing it knows that a complaint that's inadequate under nine b can easily be amended indeed it often tells relator that they ought to go ahead and amend their complaint the relator comes to the government with with good information and information worth pursuing i think it may have happened in rare instances but typically the government does not move to dismiss those complaints under nine b they usually hypothetically somebody who just reads vile in the newspaper files a complaint doesn't know anything about it other than what you read the paper not an original source right i would have the right to get that dismissed right correct would that count without bar any subsequent complaint under your under your reading runner and that is in fact what this case is about and not only does the language of  disclosure but were it the case that a complaint that was inadequate under before for not being an original source could allow the next in line to then jump into that spot what you would do is essentially you would turn he would turn the federal court into a kind of reward tribunals for potential related there each will later could come in hoping to knock out the preceding relator ultimately on the ground that all the preceding ones were generational source i mean i would expect the government would come forward in the first case and say you know these people just turned on rush limbaugh and heard about him so they file a complaint they don't know anything else about it other than what they heard on the radio the government does frequently ok so why should why should that disqualify a real original source who files first from collecting the reward that congress intends your honor i think that the fairly simple and without exception language in b five shows that congress understood the importance of providing clear signal to related was that they needed to act promptly on their information and and they were at risk of losing their entitle meant to a share of the ultimate recovery if they did not and that that is an important incentive to provide without regard to the public disclosure bar in subsection efore first of all it's it's not frequently it's frequently not clear whether there's been a public disclosure or not even though it was very clear in this case and even where the court would ultimately determine that there had been a public disclosure that disclosure may not have been sufficient to put the government on notice of the facts of the fraud that it needed to investigate and for all of these reasons it makes sense it made sense for congress to establish a bright line rule that said first first you come in soon as you have enough information to satisfy nine b you come forward now i would i don't ninety one other point and that is that this was not a question before judge levy in this case when dr campbell was before judge levy things that we argued in our brief is that as a matter of judicial and ministration the very point that you raise which is can somebody come into one case and make the claim that a plaintiff in another case lacks standing when his couldn't imagine well your honor the government didn't believe the case absolutely needed to be in consolidators under our view of the law the issue of the standing of karate and did not have to be resolved in this case however whether or not he used the the  correct procedural necklace and i think it was quite clear that that dr campbell's counsel did urge that they be consolidated in the courts declined to do that but i think in cases where as as often happens not here but where the later speil complaints about the same fraud in different districts where you're talking about a nationwide kind of fraud the difficulties of consolidation are often greater it often happens but that's what would be necessary in order best not even an issue in front of us right now that's correct that's correct you don't have to decide that he didn't decide that the question is whether even assuming as mr reed said even assuming that kar would make sense for the court to direct the district court to consolidate the two cases with the determination that would then be required and have a hearing and it would require a hearing and it were there whether cor is as you said it would be an evidentiary type of inquiry and although dr campbell has argued that you know that's not a big deal because after all district courts are required to sort out lots of messiness among multiple related already p taxed or anything in the history of the statute that that's what congress intended of congress that really meant the courts to take on that burden i think there would be some indication in the statute and i think that i guess that the last thought i would leave you with is that the importance of the first to file rule as an incentive to related is to come forward quickly to bring their information to the government so that an investigation can begin and which may be necessary even in many public disclosure cases where there's that's an interesting public disclosure case certainly in some public disclosure cases but i think when you're looking at what the five means your course runs across the whole range of cases and and we think that the incentive is still important let me ask you as a member of the court earlier pointed out there can be multiple original sources in a false claims that case the government has reached the conclusion in this case that it would not be able for  a variety of reasons you know based on the disclosure that croppy and circuit made to the government to successfully challenge them on original source grounds the government concluded that's not relevant to your determination in this case first thing i want to point out is that one of the main cases that the government relies on in support of their argument that it's a race to the court listen it doesn't make any difference who gets there first or what they knew or whether the court has jurisdiction it can be just anybody a bogus forty nine fed third to twenty seven and the race to the courthouse languages on page two thirty four and what the government doesn't include in their quote from the case is that what this court really the race to the courthouse is not a race to the courthouse between just anybody who reads about it in the paper or whatever it's a race to the courthouse only among eligible relator and so i think that also supports  our argument and i think it's very important the concession they make that rule nine d is an implied exception to or is it is the minimum threshold for a case to be a pending action because in this case the complaint doesn't satisfy rule ninety so bring a motion to dismiss the court gives them leave to amend but in order to amend they have to show that they have personal knowledge of the facts necessary to satisfy the rule and if they don't they're dismissed and then the court doesn't have any jurisdiction to go forward there's no real difference between that and dismissing them because they don't have enough personal knowledge if you want lies in the original source if you win today you get what a hearing in front of judge absolutely necessary right because we've this problem of having proceedings going back and forth between both judges i mean we have a right to litigate the question of whether crappier regional sources and so you know and  and i think that the government just conceded that we are on this because my understanding from the briefs is that it's not quite as simple as that you sought to intervene in the settlement with the underlying defendants and object to that and i think you have argued that you preserve that right so it's not simply a matter of going back in the siding ok there's a settlement with the defendants who gets the share the bounty you you're still seeking to object to the now what's left open are you now telling me that you will no longer object to the settlement so we can take that safely in place and it's only a matter of dividing up the value or you telling me that yes you're going to want to preserve your right to object to the settlement when we want to give it up now but we haven't really thought it through as to what we're actually going to do after we get all the way down there i mean now you're leaving open the possibility of maintaining your objection to the underlying settlement well we're  it open but i mean the money that's already on the table and the likelihood that that's going to go very far probably isn't very green but i mean at least dr campbell gets to go back and reinstate his position and to compete for the money that's already on the table i think thank you very much mr thank you thank you as well the case to start you just