FILED
                             NOT FOR PUBLICATION
                                                                          JAN 10 2024
                    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

                             FOR THE NINTH CIRCUIT

MARCIA STEIN; et al.,                           No.    22-15862

                Plaintiffs-Appellants,          D.C. Nos.    3:16-cv-05337-EMC
                                                             3:13-cv-03891-EMC
and

UNITED STATES OF AMERICA,                       MEMORANDUM*

                Plaintiff,

 v.

KAISER FOUNDATION HEALTH PLAN,
INC., a California corporation; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward M. Chen, District Judge, Presiding

                    Argued and Submitted September 15, 2023
                            San Francisco, California

Before: BOGGS,** S.R. THOMAS, and FORREST, Circuit Judges.
Concurrence by Judge FORREST.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
       Plaintiffs Marcia Stein and Rodolfo Bone (Relators) appeal the district court’s

dismissal of their False Claims Act (FCA) suit as barred by that statute’s first-to-file

rule. 

(b)(5). We have jurisdiction under 

, and we

affirm because the district court correctly concluded that under United States ex rel.

Hartpence v. Kinetic Concepts, Inc., 

 (9th Cir. 2015) (en banc), the

first-to-file rule is jurisdictional and bars this case.

       The parties are familiar with the factual and procedural history of the case; we

do not recount it here.

       1.     Subject-Matter Jurisdiction. We review subject-matter jurisdiction

issues de novo. Sauk-Suiattle Indian Tribe v. City of Seattle, 

, 1184

(9th Cir. 2022). We are bound by Hartpence’s holding that “[w]e treat the first-to-

file bar as jurisdictional.” 

. Although we recognize the friction

between Hartpence and the Supreme Court’s clear-statement requirement—see,

e.g., Sebelius v. Auburn Reg’l Med. Ctr., 

 (2013); Gonzalez v.

Thaler, 

, 141–42 (2012)—there is no “intervening higher authority”

that is “clearly irreconcilable with” Hartpence. Miller v. Gammie, 

 (9th Cir. 2003) (en banc), overruled on other grounds by Sanchez v.

Mayorkas, 

 (2021). Rather, post-Hartpence the Supreme Court has

merely emphasized the need to follow the previously established clear-statement

requirement. See, e.g., Santos-Zacaria v. Garland, 

, 416–17 (2023);


                                             2
Wilkins v. United States, 

, 155–59 (2023). These cases undoubtedly

pose “some tension” with Hartpence, but they do not “change the state of the law”

in a way that would satisfy this court’s “clearly irreconcilable” standard. Lair v.

Bullock, 

 (9th Cir. 2012) (citations omitted).1

      2.     “Related” Actions. An analysis of the first-to-file bar requires

comparing the complaints at issue to determine whether the later-filed complaint is

“related” to the earlier-filed one. 

; U.S. ex rel. Lujan v. Hughes

Aircraft Co., 

, 1188–89 (9th Cir. 2001); see also Hartpence, 792 F.3d

at 1130–32. We review the district court’s interpretation of the FCA de novo.

Hartpence, 

. Here, the district court concluded that the

relevant complaints for comparison were Relators’ initial complaint and the

complaints pending in the potentially related actions when Relators’ initial

complaint was filed.2 Hartpence suggests that the district court should have

considered all pending amended complaints, i.e. all operative complaints at the time

of the first-to-file analysis. See Hartpence, 

 & n.2 (“For purposes

of determining jurisdiction, we look to the allegations in the amended complaints.”).



      1
        We decline to sua sponte call for en banc review in this case, particularly
where there is no intra-circuit conflict. See Atonio v. Wards Cove Packing Co., 

, 1478–79 (9th Cir. 1987) (en banc)); see also Fed. R. App. P. 35(a);
United States v. Wylie, 

, 1378 n.10 (9th Cir. 1980).
      2
        This meant considering the original complaints in Osinek and Arefi, but the
amended complaint in Taylor.

                                         3
Without deciding whether the district court erred in selecting the proper comparators

in applying the first-to-file bar, we conclude any error would be harmless because

the district court considered in the alternative the allegations Relators added in their

amended complaint. Moreover, although the relators in Osinek and Taylor amended

their complaints between when the Relators here filed their complaint and when

Kaiser moved to dismiss this action, there were no material differences in the

amended Osinek and Taylor complaints.

       The “material facts test” determines whether an action is related and bars

“later-filed actions alleging the same elements of fraud described in an earlier suit.”

Lujan, 243 F.3d at 1188–89. The district court held that Relators’ complaint was

barred under the material facts test because their complaint alleged lesser-included

conduct that fell within the broad schemes alleged in Osinek and Taylor. The district

court explained that it would reach the same result even considering the aortic-

atherosclerosis-related allegations in Relators’ amended complaint. Reviewing de

novo, we agree. Hartpence, 

.

      Relators’ action does not exist “completely independent” of the fraudulent

schemes alleged in Osinek, Taylor, and Arefi. Hartpence, 

. Rather,

this action relates to fraud that is included within the broad schemes alleged in those

earlier actions. It is true that the relators in Osinek, Taylor, and Arefi alleged more

general conduct impacting diagnoses that were “among” those in the upcoding


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scheme, and here Relators’ allegations focus specifically on why Kaiser’s sepsis,

malnutrition, and aortic-atherosclerosis diagnoses were unsupported. Lujan, 243

F.3d at 1185–86 (emphasis added) (citation omitted). But the difference is the

Relators here simply provide more details about a few diagnoses “within the” overall

upcoding scheme alleged in the prior actions. 

 (emphasis added) (citation

omitted). Therefore, the first-to-file rule bars the Relators’ complaint because the

allegations in Osinek, Taylor, and Arefi “alerted the government to the essential facts

of [the] fraudulent scheme.” 

.

      3.     Denial of Leave to Amend. We review the denial of leave to amend for

abuse of discretion but review the futility of amendment de novo. United States v.

United Healthcare Ins. Co., 

 (9th Cir. 2016). Even if the district

court erred in concluding that amendment would be futile because the proper

comparator was the Relators’ initial complaint, which we do not decide, the district

court nonetheless did not abuse its discretion. Dismissal without leave to amend was

appropriate because Relators made no showing below—nor on appeal—that any

amendment could cure their first-to-file deficiency. See Metzler Inv. GMBH v.

Corinthian Colls., Inc., 

 (9th Cir. 2008); Kendall v. Visa U.S.A.,

Inc., 

, 1051–52 (9th Cir. 2008).

      AFFIRMED.




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                                                                              FILED
                                                                               JAN 10 2024
Marcia Stein v. Kaiser Foundation Health Plan, No. 22-15862
                                                                          MOLLY C. DWYER, CLERK
Forrest, J., concurring in the judgment:                                    U.S. COURT OF APPEALS



      I join the majority in applying United States ex rel. Hartpence v. Kinetic

Concepts, Inc., 

 (9th Cir. 2015) (en banc), because it is controlling

precedent. I write separately because Hartpence is inconsistent with current

Supreme Court doctrine, and it should be overruled by our en banc court at an

appropriate time.

      The Supreme Court has cautioned against the “profligate use of the term

‘jurisdiction,’” and it has instructed that rules are non-jurisdictional absent a “clear

statement” from Congress otherwise. Sebelius v. Auburn Reg’l Med. Ctr., 

 (2013). Indeed, the Court repeatedly has emphasized this point in recent

years, instructing that a rule is jurisdictional “only if Congress ‘clearly states’ that it

is.” Santos-Zacaria v. Garland, 

 (2023) (quoting Boechler, P.C. v.

Comm’r, 

, 203 (2022)); see also 

 at 414–19 (holding that 

(d)(1)’s exhaustion requirement is not jurisdictional); Wilkins v. United States,

, 156–59 (2023) (explaining the Court’s “clear statement” requirement

and holding that 28 U.S.C. § 2409a(g)’s twelve-year time bar is a non-jurisdictional

claims processing rule); MOAC Mall Holdings LLC v. Transform Holdco LLC, 

, 297–301 (2023) (discussing how the Court has sought “to bring some

discipline” given the “sometimes-loose use of the word ‘jurisdiction’” and holding

that 

(m) is not jurisdictional (citation omitted)).
                                          1
      The False Claims Act’s (FCA) first-to-file bar lacks a “clear statement”

establishing that it is jurisdictional. This rule—which falls under a section titled

“Civil actions for false claims”—states: “When a person brings an action under this

subsection, no person other than the Government may intervene or bring a related

action based on the facts underlying the pending action.” 

(b)(5).

This text speaks to who may bring an action and when. It says nothing about the

court’s “adjudicatory authority.” Santos-Zacaria, 

. Nor does it

include any other textual clue that points to jurisdiction.

      As some of our sister circuits have noted, “[t]his is in sharp contrast to other

provisions of the FCA that do explicitly invoke the jurisdiction of the district courts.”

U.S. ex rel. Hayes v. Allstate Ins. Co., 

 (2d Cir. 2017); see also U.S.

ex rel. Heath v. AT&T, Inc., 

 (D.C. Cir. 2015) (“The statutory

structure confirms what the plain text indicates. When Congress wanted limitations

on [FCA] suits to operate with jurisdictional force, it said so explicitly.”) For

example, § 3732—titled “False claims jurisdiction”—identifies which judicial

districts have jurisdiction over specific FCA actions and contains a provision

authorizing supplemental jurisdiction of state claims.

      A further indication that the first-to-file bar is non-jurisdictional is that other

provisions within § 3730 expressly address jurisdiction. Compare § 3730(e) (titled

“Certain Actions Barred” and setting out different contexts in which “[n]o court shall

                                           2
have jurisdiction over an action brought under subsection (b)” of § 3730), with

§ 3730(b) (first-to-file bar subsection lacking jurisdictional language). These

subsections “were added at the same time,” In re Plavix Mktg., Sales Pracs. & Prods.

Liab. Litig. (No. II), 

, 232 (3d Cir. 2020), and demonstrate that Congress

“knew how to reference ‘jurisdiction expressly’” in the FCA where it had a

jurisdictional purpose, Heath, 791 F.3d at 121–22. “Where Congress includes

particular language in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally.” Kucana v.

Holder, 

 (2010) (alteration omitted).

      There is a circuit split on this issue, but the circuits holding that the first-to-

file bar is jurisdictional have not engaged in any analysis. See Hartpence, 

 (summarily stating that “[w]e treat the first-to-file bar as jurisdictional”);

U.S. ex rel. Carter v. Halliburton Co., 

 (4th Cir. 2017) (similar);

U.S. ex rel. Branch Consultants v. Allstate Ins. Co., 

 (5th Cir. 2009)

(similar); Grynberg v. Koch Gateway Pipeline Co., 

 (10th Cir.

2004) (similar). The circuits that have analyzed the clear-statement requirement have

determined that the bar is not jurisdictional. See, e.g., Heath, 791 F.3d at 119–21;

Hayes, 853 F.3d at 85–86; In re Plavix, 974 F.3d at 232. The Sixth and First Circuits

were initially among the courts that held the bar was jurisdictional without any

analysis, but then reversed course. See U.S. ex rel. Bryant v. Cmty. Health Sys., Inc.,

                                           3


, 1036 (6th Cir. 2022); United States v. Millenium Lab’ys, Inc., 

, 248–51 (1st Cir. 2019). Both of these circuits held that the Supreme Court’s

decision in Kellogg Brown & Root Services, Inc. v. U.S. ex rel. Carter, 

(2015), cast doubt on their prior cases holding the bar was jurisdictional because

Carter addressed a first-to-file issue after deciding a non-jurisdictional statute of

limitations issue, therefore “address[ing] . . . the first-to-file bar on decidedly

nonjurisdictional terms.” Millenium Labys, 

 (internal quotation marks

and citation omitted); see also Bryant, 24 F.4th at 1036.

      For these reasons, our en banc court should take the opportunity to bring our

precedent regarding the FCA’s first-to-file bar in line with the Supreme Court’s

repeated instruction not to make rules jurisdictional absent clear direction from

Congress.




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