me please the court my name is william copley and i'm here on behalf of the appellant in this matter related while beauchamp and warren shepherd my clients brought this false claims act case to recover money that academy caused the state department to pay by falsifying  com article happened a year later on july sixteenth two thousand and twelve and yet the relator applied the bar to to my client's claims because it said it had to look only at the amended complaint because my clients amended their complaint after the public disclosure but that was error you he missed the true state of affairs which is the economy routinely failed to qualify its personnel with the mt forty in mt forty nine machine gun they alleged the misrepresented state of affairs they allege that academy made up score sports person that were not qualified under the contract that was one insufficient yours to bring the flock fraud to light which is all of the public disclosure bar requires it doesn't require anything more and once that those allegations have been sufficiently made it doesn't matter what happens after that the related then how is that allegation of froth and the district court erred because it held that if the related if it's publicly disclosed after that and the related remittance that somehow that bars the claim and makes a claim that wasn't parasitic when it was originally filed into a parasitic claim the district court relied on the supreme court's decision rockwell tells while that was incorrect there's two reasons your honor first they look the dish which was whether or not the waiter had direction independent knowledge for the original source are the relator say you should only look to my original complaint not to my men to complain for to determine what allegations i had to have direct an independent knowledge of and the supreme rejected that argument but it's important why the supreme court did so based on the plain language of the statute it said the statute the public disclosure part doesn't talk about allegations in the complaint it is a mission of original complaint or an amended complaint it simply refers to allegations in the action i e allegations simpliciter so all allegations in the action matter so the dish rock will actually quires this court to reverse the district court below because it rejected an interpretation of the allegations in the action as limited to any particular complaint it held that all allegations in the action matter which means it mattered when our client's alleged academies fraud a year before was publicly disclosed and the court erred norrin those allegations merely because relator later amended their complaint additionally your honor if you look at the parts of rockwell that the district court relied upon they were talking about a different topic that with the rockwell and the supreme court when we look at the other part of the dish was the sole original source provision and there it said you have to look at the operative allegations you can't allow related to rely upon allegations they made in an earlier complaint but have dropped in their current complaint to write a resource stocks you have to have do with the preliminary analysis of whether or not the public disclosure part was triggered in the first instance in fact that issue was even before the court and rocco because the relator in that case conceded that his allegations were based upon a prior public disclosure so the supreme court was addressing a very different question the fact that you can't allow or later to rely upon abandon allegations or used knowledge of one scheme to establish original source status over a different scheme in no way shape or form suggest the dish court in this case should decided it based on a fiction and ignore the fact the later alleged scheme that issue a full year before was allegedly publicly disclosed your view of the language of the district court's opinion where he says a contrary rule would leave the relat traveller trivial theory of fraud for which he had some direct and independent knowledge and later amended complaint to include theories copied from the public domain that's actually not and correct but it doesn't apply in this context it absolutely right there are because what the supreme court there was saying is if you have a small fraud if you say that there's this one fraud over which the government is being defrauded for one hundred thousand dollars and i have direct infinite knowledge of that and then the newspaper comes out and that's that's  friend discusses fraud be where they're defrauding the government for ten million dollars the you can't allow a a relay or to then amend their complaint to add fraud b and say that the original source of that but nothing in the opinion you somehow would lose your standing to continue to pursue fraud paid the smaller narrower trivial theory or for a lot of which you did have the right independent and also your issues dealing with a different question it was talking about original source it wasn't talking about whether or not postman version because they both start with the fundamental question of who spoke first but it's also contrary to the legislative history it's clear the congress wanted to accomplish two things in the one nine hundred eighty six and then when it created the public disclosure bar and replace what w disclosure so it dismissed a potentially valuable claim which goes against what congress was trying to accomplish in goal one with doing nothing to foster what it was trying to do in purpose to which is to deter parasitic  this case were not original sources and the reason is because the religious in this case repeatedly voluntarily disclose the fraud it issue to the government before the public disclosure occurred and here the courts analysis could be a little to under thirty seven thirty efore whether or not it's the defendant's conduct which is what this court indicated in may or if it's the conduct it's actually referred to in thirty seven three efore itself which is the finding of the complaint and the public disclosure which in amada and ross holder appear to be the conduct that the court look to in this case it doesn't matter to my client because the court has to reverse under either basis and this is true even with respect to the with with respect to the trigger of the bar because they both ask who spoke first and also with respect to the evidence of the voluntarily voluntary disclosures if my clients voluntarily disclosed the fraud to the government before winston to robert winston l will fall the complaint before the wired dot com article the allegations cannot have been derived from those public disclosures whereas under the amended version of the statute it applies the broader substantially similar but it added a new original source provision that says if you voluntarily disclose the fraud to the government before it's public disclosed you're automatically an original source and can go forward so either way because my clients voluntarily disclosed the fraud to the government before it was publicly disclosed they have a right to to go forward with their action in the public disclosure bar doesn't the first many complaint there were there was no obligation whatsoever for them to file a complaint bringing those actions required to make the disclosure their part to make the disclosures under the statute they were required to file the complaint so you see you have to still look at whether or not that but well you want to but that was under the prior version is not true the reason why you have to give an advance copy under the old version of the statue is because there was a temple requirement any original source provision that said you had to provide the public cocksure before the actual spot so you had to provide the advance copy they are to meet the temple requirement in the do thirty seven thirty b to the temple requirement is different or be one i'm sorry it's different so you've kind of made a circular argument it seems there to me that you're going back to the actual filing of the complaint i thought your answer to judge the as even though a slightly different context was there was no case  but even if we set aside the complaint in the evidence or disclosures there were two other voluntarily voluntary disclosures that occurred before the public disclosure in this case that the district court simply overlooked the first was the april two thousand and twelve disclosure of the record i want to identify for you two individuals who were firearms instructors with the cademy and were fired for disclosing the very same allegations the relator is have made in this case they are important because they corroborate the allegations of our were later that academy was brought was falsifying weapons scores that was in april twentieth of twenty twelve three months before the disclosure after that then that was just the beginning the relator been brought winston wheeler to the d o j to be interviewed by ms younes and representatives of the state department in detail about their experiences again as corroborating witnesses and the district court didn't just didn't find that this evidence was insufficient or lack credibility you'll notice from the briefs that the two sides here have pretty strikingly different grades of rockwell i got very good advice about twenty years ago from a very smart judge when i was brand new lawyer and he said if two sides come into my courtroom and they have vastly different  reads of a majority opinion go read the dissent it will help you understand what the majority thought about and rejected and if you look at the sent in iraq well i think it resolves for you what the majority opinion stands for justice stevens wrote a dissent that's especially helpful because it specifically for warns against potential amendment chilling impacts of the rockwell majority rule it's a remarkably similar parade of horribles to the one that you see and hear from a pelleas in this case he sees me pumped what the dissent noticed about the rock will rule is that this rule requires courts to  public disclosure and original source key temp case every time a complaint is amended and they noted this will interfere with the ability to tailor complaints they thought about that they considered that and when they weighed what rule they were going to come up with they decided they're ok with that result they issued a rule that says they were later just may not plead a trivial theory of fraud for which he has some direct and independent knowledge and later a man that complaint to include theories and details copying from public domain well i mean rockwell dealt with you were little source doctrine primarily not the public disclosure bar and the sense often parade of horribles in front of their colleagues in the majority to get them to think about the scope of the majority opinion i don't know the majority opinion goes as far as you suggest that those but i think what the dissent offers is an insight into what you have to do in any public disclosure case you have to balance on the one hand the idea that the government has an interest in empowering the public to expose fraud and on the other hand as you see in so many cases we have also an interest in preventing parasitic actions in opportuni parasitic about this action in the relator came forward they had the information in their own investigation and they simply amended their complaint to add some additional information which as i understand it is primarily related to the terms of the contract what is parasitic about allowing that action to proceed in this context or you can see in everything that was before a judge ellis where they drew their parasitic information from he had done a five the disclosures in the wired article that were public and the wired article relies on the winston wheeler complaint which i will note just briefly under the pre two thousand and ten versions of the false claims act language that winston wheeler complaint in all of its specificity would have counted as a public disclosure the specific knowledge and that's not a small detail by the way because without knowledge of how the contract works you don't have knowledge of fraud you have an idea that may go to the legal sufficiency of the claim in the first instance but it doesn't to my mind anyway address whether or not have stood alone and did tell us noted in his opinion that it would not it wasn't sufficient and if it isn't that's what you have to decide big picture is do you want to conduct to be ok to have an insufficient claim and to be allowed to go out into the public domain and harvest from the internet or any place else you can find things and put it in your new amended complaint and do so in still escape a public disclosure public matter how significant or trivial the amendment is you know  substantially the same which in his case might be because you're looking at thirty cut and pasted paragraphs and that's fairly straightforwardly strikingly similar or it could be something on that scale but it isn't going to be i think what you described one small change that was derived from something you get in the public domain i think that's where our fact finding judges will have to apply the judgment that we want them to apply when they're applying that legal standard and they'll make those findings i think it's important to note the  this is not a jury the jurisdictional stripping language is now gone from the statute number one so his line in his opinion that says this is a jurisdictional bar can't be right so you've got that to address relative to his opinion farmer also says you have to you can't apply this retroactively so i think derived from that is the very legitimate conclusion that you've got to take the version of statute that applied during the contract so now you go ok i'll be honest with you maybe when i was younger my brain was fresher that would have been exciting challenge but when i looked at that i felt like i was going to explode it's a little bit a grocer yeah i don't envy you but i do think it's possible i wish i had a white work because you can actually map it like one of those foursquare and alex's because you've got two columns one is the rules that apply before march twenty third two thousand and ten and then the rules that apply after and then you get two rows one is the rules about the public disclosure straddles and because produce pharma came out three months later is no kaidan a little complicated there's some neurosurgery in it and this is going to happen but only for short period of time well that's what is possible it's going to be very complicated for judges and i think this would be the kind of opinion that if you took it and you resolved it because there's plenty of reason to affirm this there is a real decision that you're asked to make the kind of hovers above all of this that says can you let a plaintiff make a b own that's analysis this is nothing about the public disclosure well i think the i think rockwell is out there right and the plaintiffs and there were their counsel are making a decision to change and substitute and amend the complaint and we're either going to incentivize the behavior that says i'm going to go gather from the world because i want to aggregate and i want to opportunistically gather especially in situations where you have lots of actions lots of attention lots of media interest about particular activities do you want that to be the thing that happens or was all of this originally intended to benefit the government not for later use but what is in the interests of the government do you want to have every single relator who might have a trivial idea or a bare allegation that wouldn't survive on its own to now be incentivized to go out and collect from the public domain anything that they can find without ever running afoul of the public disclosure bar and i just don't think that's what the case law points you towards as a result and i think this case because of the way it came up in the timing in the straddling gives you the i opportunity to explain these legal issues in a way that gives guidance to the district courts because we're seeing a lot of these public disclosure bar collected information opportunistic some comb parasitic actions where they get to the third and fourth and fifth amended complaint before they have something that can go forward and the question is how much do you want to let them collect what do you really want to incentivize and there's a scale of or later when you look at these  original source cases it's an exception rights the original source exception to public disclosure are on one end of the scale you have the true white hat hero guys who have exposed fraud in their original source activity is like they went to the f b i and eighty million dollars fines were awarded in a criminal investigation was started and people are pleading guilty all over the place and legs are being saved and stuff like this that's the extreme end here and the other end is the relat or who is filing his own complaint and it's a me too i want to piece of that kind of there might be a false claims act here and i can be related to it that's the other extreme and every relator is going to fit somewhere on that scale so the thing i did and when you see the amendments being made to the false claims act they're sort of capturing that right if you're they're going in the direction of look brooke filing your own complaint that's not what we meant  doing your mandatory disclosures in service of your complaint not what we meant and hear the only issue that's a then a fight as a potential dispute of fact in all of the findings that jugglers applied to the rule of law that he had selected is this question of original source status and of all the things the plaintiff appellants have a den of fide they fit basically into the category of i filed my complaint and i did my mandatory disclosures and my lawyers did three other things and the existence of those facts is not something either party disputes what we each dispute is the effect of those facts and i don't think that's the kind of thing that you have to rem back to have resolved by a district court judge so that you can apply the right rule of law to it i think the existence of those facts is what it is and what is to be decided is what is the right rule of law given those particular activities and but what they had was a non viable description of something that might have been a fraud it wouldn't have been enough by itself it became an hour later when they pulled from the public domain and that opportunistic amendment complaint not a voluntary act on the part of the plaintiff that well i think when you're in that row that i have for original source you've got to do it because our time frame straddles under both standards so under the original source rules that were before two thousand and ten and you're going to have one and alice's then i think you can take to joe's his findings of fact to get there and then under the original source rules that apply after march twenty third two thousand and ten you can take  findings and apply them to that and pre twenty ten you're asking did they have direct an independent knowledge and then you can look at amado who played that standard and know that you can also aren't supposed to get that direct knowledge from some intervening agency and i think that rule eliminates all of the examples that were given the first many complaint which no case law has ever held counts as that kind of does exception creating voluntary disclosure  original source rule as a as a case said that it can't be i don't have a case that well actually any moment i believe we've cited to mine that and i could be mistaken but that has done that kind of knowledge and cited to grayson for the rule that you can't have intervening agency that creates that knowledge and i think that gets you there if you supply that reasoning to the idea of the filing of complaint and whether or not it counts and fundamentally i revert back to why we have an original source exception who are trying to save the reward and i would suggest it's the white hat guys not the ones that are just pursuing an opportunistic false claims act that they've can climb rate that's not what the exceptions for so i think pretty march twenty third two thousand and ten the result is fairly straightforward and that's the law that ellis had applied to get where he got if you also excuse me my my apologies i also got they backwards he used the post march twenty third two thousand and ten language and came to that result you can get to the pre original source language with the analysis that i just went through going through the independent and direct requirement and in i think that their findings of fact that you can rely on and there's a rule of law that's clear and there's actually a lot of case law for had why that old standard because it's come up a lot you have to force or the cases for example who were affirmed at the fo circuit when they denied leave to amend based on the amendment being pulled from the public domain so these announcers have been wound through in that pretty language sufficiently that i think there's plenty for this court to take hearing about we know what the facts will come out to be and i think now thanks to the produce farm opinion we know how to properly address the law i think you can issue an opinion that gives that back to judge us and tells him to do that but i think if you look at twenty three of us  fairly clear how that's likely to come out and maybe we can avoid yet another one of these cases going back down coming back up and being around forever i would suggest to you that it is a fair and consistent with the u s supreme court's guidance result to have thank you your honors i'd like to start out by talking about how under either verse of the statute now also to since this was where we left off was that was the preeminent version i'll start there my clients of the white hat guys they are exactly the parodic magic whistle blowers that ms lee was referencing in her presentation if this court's going to apply the preeminent version to academies over conduct then has to look to whether or not the related allegations were actually derived from the public disclosures and here's how the court can know that in this case they were not actually derived from the public disclosures and this applies to the winston wheeler complaint or to the wired dot com article the doc the record this case establishes that my clients learned of academies fraud by being personnel on the ground in afghanistan participating in the very fraudulent weapons qualifications that and subject of this complaint you this court should look not only to the first of many complaint but also to the eviden disclosures that were attached if it's going to do the based upon a derived from analysis they are they dead the five by name for different firearms instructors who did the false certifications they attached copies of score cards were scores were made up they were very specific details based on their personal experiences in afghanistan that when into these complaints mislead would have this court just assume that because there was a complaint filed after a public disclosure that it was based upon those that simply isn't true it's not true with respect to the fundamental aspects of the scheme and it's not even true with respect to the relator is knowledge of robert winston allan wheeler and their examples if you look to the disclosures that were made bike by  the department of justice they are very specific that the relator new of robert winston allan we learned their experiences before their complaint was filed they disclose those to diana yams at the department of justice before they were filed we could not have been derived from the later filed western complaint much less from the wired dot com article because they were disclosed to the government before that they were disclosed in interviews the related council orchestrated and flew robert winston now we were in to be interviewed as corroborating witnesses all of this happened all of this was known long before robert was so now when we were filed their complaint and wired dot com wrote an article about it so there is no doubt in this case that the allegations were not based upon the only evidence they can cite two for this based upon notion is that yes there were thirty paragraphs in the complaint that were similar probably winston wheeler retaliation claim and the second of a complaint but those pertain so into describing the contracted issue it's no different than if you have a false claim t public domain are regulations in the public domain the whip's contract we're talking about is in the public domain you can google it the contract itself the source of the legal obligations is not what matters that is the sort of innocent information the courts have repeatedly said doesn't matter for purposes the public display what matters is the fraud miss leigh could not stand up here and it didn't apply a single element of the fraud itself that the rule later learned from either the winston wheeler complaint or from the wired dot com article there's no aspect of the fraud that was already a case pending about academy not qualifying its personnel with the belt that weapons that's a reference to this case in the wired cut dot com article itself one of the per verse aspects of the dish of course decision is the dish court held that public disclosure that referenced the prior allegations in this case but are those allegations parasitic that makes absolutely no sense your honor the other thing i just briefly point out is academy's only response to the winston whe just to the disclosures in the april twelve twenty twelve email and the interviews by the department of justice is that somehow they say this was just the related representing whiston the wheeler wasn't i'm sorry really was counsel representing mr wheeler it wasn't represented relat some selves your honor that's your reconcile by the record you know that because of the plain text of the april two thousand and twelve disclosure e mail itself which is all about described disclosing corroborating witnesses to the d o j attorney responsible for investigating and that attorney had no reason to speak to winston the wheeler because the only brought a thirty seven thirty eight claim for retaliation not a key tam claim so there was no reason for the d o j attorney to be talking to robert wilson now wheeler other than his corroborating witnesses in this cla