ready to go please the court this case presents this court with the question of whether or not the government may choose not to abide by stache tory command simply because it does not want to in this case the government said below that they have a policy i have not giving it's rent reasons for consenting to a dismissal of a false claim action because they're that their policy is that might influence future actions this is despite the actual statute which requires both the attorney general and the district court when it scenting to a dismissal of a false claim that case to actually give their consent both of them and state their reasons for consenting neither the government nor the district court didn't this case what they did with the remedy if you are right on that statutory argument then the remedy would be for we ask for two remedies one the alternative the core obviously converged remand this for both the government and the district court state the reasons for consenting but given this substantive nature of how this case was dismissed being in the forty one eight two context that the court could render in our favor dismissal should have been with prejudice as to both the government and the named related that's your next substantive argue correct but they are related because both the reasons for consent requirement in the statutes and the same exact provision that per that requires a relator is to bring an action on behalf of the united states government and in the name of the united states government necessary nesa to say it in that if their case is dismissed with prejudice so the government's case it's the same case as the district court below said you can't separate the monkey from the organ grinder in this case they only had one claim is related there's it was a false claims act case a cl claim on behalf of the government now what they did is they offered to dismiss that claim with prejudice three and a half years after they declined an option to dismiss the case because they had seen that they were going to face some adverse rulings in this case first they were going to see that the second case in which they had a secret interest in with another relator in georgia was to be transferred to taxes and ultimately dismissed pursuant to the first to file bar in the false claims jurisdictional and the second case must be dismissed had it been transferred here in the eleventh circuit there's been no such determination and so because there's been no such determination my clients run the risk of having to go to a transfer venue determination that was decided in their favor and twenty fifteen possibly face an adverse ruling on that which case the case would go forward and not have to be refiled and had it been refiled my client statute of limitations defense would take hold in this case had it been transferred but there's nothing preventing you from making the first of all argument in georgia that's correct your honor i want to make the argument that's correct your honor that weakens we have still made the first file in fact we did file motions that fact but the case was stayed and i think where that goes as well is that really prejudiced and why she know you're going to lose but this court has repeatedly decided case that had been on file for four years that the judge had determined that venue was proper unused and that the judge should determine that there was probably no kickback and seem poised to rule in that determination which we filed a motion for summary judgment asking that all that's wiped away so that we can go restart in georgia make the same arguments all over again reliving eight all over again and the result will be that we might not get the same result we would have in texas when you say  over again though there had been no discovery there was a summary judgment in the motion that had at last been denied was your motion to dismiss so it doesn't seem like that the prejudice argument seems a little strained prejudice as is on multiple grounds but on the summary judgment ground it's whether or not there's a threat that the summary judgment would be entered and we believe that the record shows at least that that in our view was likely but should have been considered first but also that the motion the transfer venue which we had requested the georgia case to be transferred to houston i'm going to solve it with that case and then be dismissed was definitely right in fact the district court below it observed that the second filed case was nearly identical to the first fall game case but based on played us have just said we quit the government isn't helping it's going to be too costly were out and you that that's precludes this to them it's with prejudice and if it's conclusive as to them it should be conclusive what the respect of the government the other related but there is almost no circuit authority that states that i guess i was going to you you might say the seven circuit interest there you've you've distinguished in your brief or williams decision that seems pretty central could you explain again why it wouldn't be appropriate to reduce that rule to if not on merits government isn't also precluded why isn't that the take away from williams it is your honor and we believe that a with prejudice determination on a voluntary dismissal is on the merits of on on the merits doesn't necessarily mean the weighing of the founts in fact this court when it decided williams distinguished shammal shambles a ninth circuit case that granted a summary judgment land of just say we're exhausted or if there are lawyers malfeasant why would the government then get prejudiced elsewhere where they have a parallel investigation because the government has two options at that point of a voluntary dismissal under appropriate because there's one claim fairness there is a pretty overwhelming practice and at a minimum a practice that a relator can be dismissed with prejudice the government without prejudice not at the voluntary dismissal stage or on or just a matter on a nine b motion and we and i actually i think that makes perfect sense if the relator and i write songs that might make sense is from the constitutional standpoint you're familiar with the riley case there is this tension in these late believe that we ems cases pretty explicit on that fact and that if a complaint fall something that is so devoid of specifics that doesn't cost nine b and just requires the government to intervene and fill in the blanks that's not appropriate and so that's what this forty one a one motion before an answer a summary judgment probably also should be without prejudice the court's long history of forty one eighty two motions deal with the certain circumstance where here today this isn't just two separate relate at least maybe the relator is want to go home the attorneys are saying no our clients want to go home but not disclosing that they stand to recover in the second fall case if it's allowed to go forward that's why they're fighting the dismissal with prejudice is the government so the motions to extend the seal where they claimed that part of the investigation was based in georgia by the o p m which often office personnel management not the actual u s attorney's office both northern district of georgia and southern district of texas investigated this chose door number three which they can't do but one in two would have been available rector had they intervened is there anything that would have restricted the government from then moving for a voluntary dismissal without prejudice the district court having to consent to that right but the district court had already made it clear in april first twenty fifteen that this court if this case is to go forward is to go forward in the southern district of texas and if the interest is to have the government which is why them stating their reasons for consenting is important is because they want to be able to pick up the case again in georgia years after that determination the district court has every right to say that's not right but i wasn't hearing the government articulated its reasons why the government said we've got a choice here and that's our choice the government refused to articulate its reasons i thought there was sort of an exchange admittedly not in writing it was an exchange in which the court said you're supposed to articulate your reasons and you haven't maybe this one the cases where you should and the government said for bait i'm your honor as the court has observed it's typical that united states does not state a specific reason why and they get in the court despite the rule and the government said we have by granting consent that shows by inference that there has been some thoughtful procedure into the session of the consent so at best the government saying you can infer the reason that's not what the statute says is looking at the government's brief or page eighteen it's looks like the the they offered the fact that consoling the cases and conducting the investigation from georgia was a better use of government resources to is it fair to say that that's the reason forward or the government going forward not being able to try in one case and then have their cake and eat it too because they don't like that case so they pick up a second case that undermines the purpose of the first to fall bar but also understood minds a purpose of the six year statute of limitations that would apply to any second fall case that would have to be refiled this case in georgia should have to be refiled and if it had been transferred to texas it would have been dismissed and then  to this court's decision all state us branch first of all state the first to file bars jurisdictional so does this court as many other circuits have found that a second fall case that has been brought has to be brief dismissed  matter if the second if the first fall case goes away or not once it has to be resolved after the second case is dismissed but it can't just be amended and continued in the same jurisdiction in the same it or in any jurisdiction  somewhere and that's clear in this circuit is clear in about three or four other circuits but not in the eleventh circuit where you sit down could you address what sort of in the footnotes speaking of jurisdiction you filed a timely notice of appeal from what adverse ruling from the from the court's adverse ruling denying our fifty nine rule our motion for a trust second both and it was because we filed a motion for clarification when the adverse ruling would trigger our the twenty eight days we had from the original judgment and then asked the court to clarify that his denial of that second motion is when we should judge our right to follow a notice and he gave us that clarification and so that's why we don't feel morale of time  for the united states of hearing as amicus supporting their later in the district court decision i'd like to make just a few brief points about bell helicopter before moving directly on to some of the defendant's statements about the  failure to state reasons so what this court is being asked to do by the defendant is really fairly extraordinary in our view that they're asking that this court hold that the district court abused it discretion by essentially following this court precedent and that presents bell helicopter and its opening brief the defendant's opening brief does not even address what we view as the controlling precedent that squarely on point and it's on point because in that case the district court said i'm going to enter a motion to dismiss with prejudice exactly what the defendants want this case because the defend the relator in that case they failed to survive t separate motions to dismiss and if the united states had cared that much about this case they should have intervened and they should have taken it over and fixed this essentially and this court said no that was inappropriate because there had not been a decision on the merits and this court made two important points and that is first of all the statute does not require the united states to come in and intervene in every meritorious case and the second is that that district court's reasoning under that it created this perverse incentive for relator is to file inadequate pleadings knowing that the government would have to come in so in our view the court's very pragmatic view of the statute is exactly what applies here and it is because it is a sound and pragmatic view that is why district courts over the country have relied on bell helicopter to find that in those cases the united states should be dismissed without prejudice because there had not been a decision on  case is consistent now defendant relies on that case but it is a very factually complicated case it involves current claim preclusion there was an initial suit by the relator in that case which was an employment retaliation case and that was settled between that were later and the defendant and then the relator filed a second case which was a false claims act fraud case and the district court there was saying well the view that that was a claim it was precluded by the earlier case when it got to the seventh circuit but the but the court said that the united states should be dismissed without prejudice the seventh circuit was concerned because the first case while it was a it was a decision and if it balland that particular relator it was a case in which the united states was not a real party in interest and it could not have intervened and therefore the court was very concerned about this and the lusby court said that that earlier employment retaliation case was not race to cut that took care of the problem and joined this this court in fact on that point but the important language out of lies be is that it's sad if the relator had litigated this case to the gills and last the united states would be bound and all other related and we agree with that that it's always been that the government's position we agree with the language and i eisenstein where there is a colloquy between the the relator in that case and the supreme court where their later says well actually even though the united states is just the real party in interest and it didn't intervene we should treat it as a party in this case because when the relator loses there's a judgment against or later it binds the united states and the supreme court says well that's because there are circumstances in which a nonparty is bound and there was no surprise in this case there was no mystery as to what the government's reasons were defense counsel was proposing that you all would be united states takes the formal position but you don't have to provide reasons it's not true no your honor so we say when th when the usa said that language to that effect in the hearing she was not referring to the reasons that we gave in our various documents there were very obvious facially obvious reasons why we were consenting she was referring to the strategic reasons the strategic you know assessment of the pros and cons of different cases that the government necessarily makes when it looks at any relator case right the government is not going to provided reasons here it was no secret first of all there were the let's call them the macro reasons the larger reasons those were and those are the same in almost every case right so the united states and what you know the purpose of that provision thirty seven thirty b one is to make sure the united states has notice that the relator wants to voluntarily dismiss and give the united states a chance to look at the circumstances is perhaps the relator trying to cut a deal with the defendant is something funny going on that would prejudice the united states and if the united states determines that in fact that is not going on that's what happened here then typically the united states will give its consent so long as the united states rights are protected and that's that have a yacht that was in the document that we filed says we give our consent provided that it is without prejudice as to the united states that's the protection for the so it usually the reason the reason that the united states is is consenting is kind of obvious on its face we're not going to force an unwilling relator to continue his case it's that simple it's it is i say clear on its face we don't conscript people to continue their losses but you do look at what the relationship is and the reason a little bit just the record reflect whether there's any ongoing shared interest with of one plaintiffs in the georgia point of your honor that might be better directed respectfully to the relator council i believe that the usa said this in the hearing we don't get involved in related to relate this is to correct something that the that the defendant stated which is that this was from the beginning largely a case situation in which the northern district of georgia took the lead in a tagalong and the district court called that case many things around the the distance certainly the district court here did make clear that he viewed this case as the first the first to file and that is something that would be determined in the other case but it was a shared interest remit had seventy percent going to the ball in play there's a bigger part didn't the original shared agreement sharing agreement attribute seventy percent i just some you're telling us the district court called it many things and the georgia case is the principal one what's the record support for that we're out of i don't want to get into any of the of the  well there's a distinction between whether northern district of georgia the u s attorney's office and the regional offices of agencies in atlanta were taking the lead verses that relate or is lawsuit i'm making a distinction there and i should have been more clear but in fact as i said the there was no mystery the the district court here understood that the government believed it was more efficient it would be better to be centralized in the northern district of georgia and the district court actually said it's record excerpts page forty eight they've decided they're going to do that case instead of this one so there was no mystery here about the government's reasons and if to the extent that the district that the defendant is saying we needed to say more very specifically what we were doing so that they could review it in some way well i think the answer to that is us extra michaels v later the substance of the consent requirement of section thirty seven thirty b has been in the false claims act sense it was signed by president lincoln  sixty three and not surprisingly in one hundred fifty five years no court has ever interpreted that consent provision as united biologics asked you here in fact this court and every other circuit has said the exact the heart of their argument is that you can't have a dismissal with prejudice of a relator without dismissal of the government and that's the exact opposite of what this court said and the way tim's case it's the exact opposite of what every other circuit to address it has said including the cases we cited from the second circuit and those cases are not all about will not how they try to distinguish it now and some of those cases it's cases where the attorney in particular who represented the party had an ethical obligation or a conflict because of how they got the information about the false claims claim and was struck in other cases it's where they didn't call the proper procedure and they filed it not under seal and so the court decided this isn't the proper party to go forward there's even a case from the southern district of mississippi the homes case which held that it was with prejudice the relator and without due to ethical violations in this court affirmed that decision so the idea in fact most surprisingly the house of ruth case that they rely on for their argument about written rules that's a voluntary dismissal with prejudice to the relator without prejudice to the government the very case they cite to you is exactly what's happened in this case there's never been any decision that has ever said and lesbian on i think is directly on point your comment about it it says in it right if they had litigated this deals and lost then it would affect the government there's no about that here but this is a voluntary dismissal with prejudice to the relator it has absolutely nothing to do with the merits and it's in effect the government anybody who knows me knows that i would never like to share my time at this lectern because it is limited that i get to be here so infrequently but the government obviously has way more interest in them than we do which is why when they ask to go first i have no problem with that because after twenty plus years of practicing law i am here arguing for my client to lose  you know my question that they are just that i ask you what is your ongoing interest is there anything in the record that reflects some the von relator is have absolutely no ongoing interest what they try to mining from the georgia case they get absolutely no money from the georgia case with the only thing they can point to is there is a provision in the agreement that says if there are excess funds you agreed george or later that you will give a donation to a entity designed to it's a nonprofit entity to promote them have the words run from me by the left at the table allergy issues and it gives this association as a example there's nothing that requires that donation there's nothing requires it be that entity there's nothing controls it right but the vonn for doctors right before relator she were here said when when the hearing happened they still maybe had an interest based on the sharing agreement and the district court raised that issue and the wagner later said you know what we don't care we give it up and and i can't say whether or not they will and i don't know but the what the what happened at the hearing and this goes to the court your question about the whether or not the facts were discussed that the reasons were discussed at the hearing they filed a  a written consent and the statute says it has to be written consent and give their reasons there's no disputing this case they filed written consent and the court gave a written order but your honor to your question about what the government's going to do at the hearing the judge said i'm not going to rule on this until the government's here and he called up the government lawyer had her come on a moment's notice and what she said was our understanding is this case is going to be dismissed and that case can go forward and what the judge said is she made clear the judge said the u s attorney made clear that the intent is for that case to go forward that being to her the georgia case whether or not the government will intervene in that i don't know but i think it's clear everyone's intent is t georgia case will go forward and this will go away this is all been going on for a long time i mean if the government doesn't do something it's much ado about nothing i appreciate that your honor i think that's probably true and i think a shame that there is something here but when one of the arguments they make about about whether or not they're prejudiced in the way whatsoever is this idea that it's been going on a long time but the time from when they filed their answer and the initial scheduling conference and when this dismissal was filed is a matter of weeks this actual case nothing was happening because we don't have the court of control of either the government's investigating that right and there's a there's a statutory requirement about how many days they have to decide when i think they will intervene right and that was extended and we don't have any control over that and i think that it's clear from the record i mean the government filed a motion transfer and make clear it's reasons why it believed it was better in georgia at the hearing it was clear that they believe that the case should go forward in georgia so whether or not they intervene or not i think it's clear the government thinks the case should be in georgia and one reason that might be is mike individual clients are physicians who believe that their practice is improper or fraudulent but happening right now the georgia case is is a whistle blower and their claims are i mean there are substantial overlap between them but they are different it's not same counsel both which sets a relator originally it was not your own and they have a sharing agreement and so this council now has agreed to continue on in that case to the extent it does but they're not the same i mean one of the argus they keep making is that the ga relator somehow still has an interest in this case right but that's the sharing agreement they're trying to apply but it's an interest of zero fact that the lawyer from this case may now assist the lawyer from that case as their counsel in the hicks case next case has absolutely nothing to do with these voter elaters  i mean i wanted to talk just for a second about the extraordinary nature of the idea of why we're here because what we're really here is it's a motion to dismiss with prejudice i mean there's two things in this case there's the statutory rule right which we can't find any case that has ever said that  dismiss with prejudice to the to the individual you have to dismiss to the to the government's well we can't find any case that ever says that the reasons have to be in writing which is not what the statute says this is written consent and there are reason which we think we complied with here the third issue is forty two we can't find any case where anybody has ever said it was an abuse of discretion for the trial judge to grant a motion dismissed with prejudice which is what happened in this case what they're asking for they're not entitled to what they're telling you is we want you to order and there's several things are asking one they're asking you to modify that to also include prejudice with the government which one you couldn't do under your court's own precedent because you've said you can't dismiss you can't change it without prejudice to prejudice without giving them a chance to have to withdraw it to what i'm thinking do under the statute because the statute requires consent and the government didn't give consent in this case so there would be a special issue there but beyond that  they asked you to if you could put conditions on it and they said they want you to tell the georgia case it has to come to taxes which makes absolutely no sense if the wagner later is aren't here anymore right the idea that we're somehow trying to get over this motion transfer all of that argument rule forty two and what this motion dismisses all assumes that we're running off to georgia the vulnerabilities are done there's nothing going on in georgia with them so what they're asking to do is enter a condition that this court said in the beach at case which if i remember right was from the same district court where he put a condition that said if you refile and this is actually the same party if you refile this you have to refile it in my court and the court said that that was an of discretion to put that condition in there and said that you could have local rules that set of cases refile that's come back to the same court but you district judge can't make that rule yourself they're not asking you to put a condition that you said would be an abus out your pain court costs you can't come back again so really you're just making a very strong argument on behalf of the public and the government that's exactly right your honor which is why i'm willing to let her go first bit but this is i mean that's the art of this case what they're trying to do is use the fact that this judge wouldn't overstepped his bounds and wouldn't go take the georgia case and bring it to his once were dismissed with prejudice right they want you to order him to do that they want you to decide this in the first rule doesn't go away they actually have additional defenses in georgia that they don't have here but they want you to tell the eleventh circuit we don't trust you to decide these issues in the georgia case the this is the way these this lawsuit works this is the way related to do this every it please the court i want to clarify one thing that's just absolutely not true if you look at page sixty two of our record excerpts it shows who has an interest in the georgia case it's specifically from their amendment to their sharing agreement and it states first all attorneys who have attorneys fees and are cost in the houston litigation shall recover such trash tory fees and costs that would otherwise have been recoverable from the houston litigation in the ga case and so the attorneys in houston case then attorneys for the later sure are you before you here today claim that they have no interest in government goes first they're just here on the public that's not true it's absolutely not true and the record does not support down at best  have an interest of four named or later years but by the time this dismissal was entered the only one with an interest at the relator level was next who's a georgia plaintiff so can we really have a system where a second college or later can have their case through other people dismissed supposedly with prejudice and taxes so then they could pick it up and go back and do it again in ga that's not fair that's totally antithetical to forty one eighty two you don't get to do it twice especially not in the in the false claims act contacts otherwise you're extending these out that's why we've been here for five years it's not because the government takes its time it's because they're all taking their time they want to start new tomorrow in georgia and that's forty one two says you can't do that now at this stage of the litigation what they're also saying and saying you should have an argument for government's reasons consent is not an argument for us to do something or is a an argument for the ga court dramas for  actually it should have been an argument for the district court to do something such as either deny the motion dismiss voluntary motion dismiss or impose reasonable conditions now this court could either modify it or it could send it back to sending back is probably the easiest option for this court  for to read first the district court never stated its reasons for consenting no one makes any argument that you can infer anything from what the district court said his reasons for consenting the statute says a district court has a state its reason for consenting that didn't happen the district court has to now i had they claimed what they claim to you at the district court level that this was all clear they just wanted to go to georgia avenue strong suspicion the district court probably wouldn't withheld his consent want you to infer that from all pleadings two years ago before they even moved to this mess and that's not that's not appropriate and specially because the statute i heard them suggest that quite the opposite they expect you to win in georgia that well i don't it's procedural ground well the government may make a claim that we could have dismissed in georgia but the real later including the same attorneys in this case and the same attorneys in georgia have argued that we don't get a dismissal in georgia they argued the opposite they argued that the first to file bar does not entitle us to a dismissal because this case went away on a voluntary motion this mess and that's different in the eleventh circuit if they're right than it is in the fifth circuit that's why we're prejudice by being in georgia rather th taxes if we were in texas there is no doubt that the second fall case would be dismissed that's not true in georgia and it's also not fair that they can manipulate the legal machinery is related is to do that because it's not just a plaintiff case it's a real later false claims key town mansion this court has said the opportunistic plaintiffs are the danger of the false claims down because a forum shopping and that's what's happened here when they saw a judge that they didn't like because he was going to rule against them either on a motion to transfer venue bringing the second case here in dismissing it or on the motion for summary judgment was inevitable but in fairness i picked united states move to transfer to georgia before these how much of a hostile statement from two years before and they lost and the government is to reform shop allocation there's been a desire to go to georgia for some time right but the district yeah that's correct your honor but the district court's ruling on that should mean something it should mean that when the district court in twenty fifteen said the first fall case puts jurisdiction in southern district of texas it should stay there they're using a voluntary motion to dismiss two years later that undermine that ruling without explicitly stating it making you infer it at the appellate level not telling the district court directly that that's what they're doing giving the implication they have no interest in the second pollock case when they do and all that's just gamesmanship and for sure granted this court has said the potential for form choppings  necessarily enough for conditions but the potential was not a potential in this case it's happening this case is being litigated in the second court by the same people with the same interest because they didn't want to be in front of the judge who's going to rule against it that's why