request six minutes for about six minutes ok that's granted thank you provisions of false claims act three seventy nine is violated as relevant in this case when somebody knowingly presents a false claim to an off serve the government the issue of whether rule applies because you say there are other reasons reversed but i'm curious about that since if you're right and we were sent this case back wouldn't the court have to know what pleading standard nine be applies this case though meets that standard so your view is that no matter what you you believe that you've met the ninety standard yes you're on ok well with with that in mind can you address if you would the the court's assertion that you just  no place in your pleading even after given two opportunities to amend you're still failing to get to the crucial point and i'm looking in particular it a sixty two where  theory of science or appears to be that the mere existence of compensation policies rendered p c i ineligible for participation title or program that's continued submission of student applications for funds demonstrating knowingly false certification dollars billion records says that's your theory and goes on to say there's there's nothing in the way of specificity both here besides your c what shabbes policy was written or otherwise the law doesn't prohibit and certification does not promise having or not having a policy that complies with the prohibition would violate the law and you've done nothing to show that they had any knowledge or understanding that the people in control the organization acted with knowledge or with reckless disregard truth you've given me no factual specificity now you're saying well when the judge said that the complaint was insufficient because it contained no allegations that they at all acted knowingly when they presented false claims are made judge brown's decision here is that you don't just get to say knowingly generally in this context because ninety applies you have to give enough specific city in your complaint that one could say ok that's why they knew you can't just say they knew you got to say something about how or why they well it's really easy on you there was a a chord and i forget the name of the defendant but in that case they were they were not evaluating a pleading standard and they did not hold in that case yeah well if you didn't read it that that was the holding that is wh violated the law when one need not go outside the pleadings for any facts to determine whether that plan violated the law but that doesn't really answer the point though does it their point is this is not  automatic thing it's not a matter of them making their case it's a matter of you having an affirmative defense and so until you raise the defense it should be a matter of for it's just like  merit based adjustments the salary provided back it's not those adjustments are not based solely on the number of students recruited admitted enroll or awarded financial way so was the u s department of education on the third point is that if it was reasonable for the u s department of education in two thousand and three to interpret the statute as permitted semiannual salvias justice it certainly would have been reasonable for the school to have done so before repeatedly you point out that a lot of these arguments made by your adversary are waived because they were brought up too late in the process which arguments exactly are they i mean i think you can say the ninety argument is going way right now what we said is they hadn't in motion for reconsideration following the dismissal with prejudice after they had a motion to show cause why they shouldn't be allowed to amend a complaint followed by their original opposition to the motions to dismiss and injustice or a clear error a fact or law they didn't even attempt to meet that standard and they don't and i would say even if you were to go back and do the de novo clearly this was not the determination of whether or not the the appropriateness of working with some some degree of rigor of allegations of knowing this informal statements in a case like this this is not a case where t c r is alleged to have said affirmatively to the department of even if it were true they violated a regulation that's not a false claim against the government there is no allegation that when they initially signed up applied to participate in these programs they intentionally by hoping to get something  corporation and so that claim was abandoned back when the second major point was dismissed it's been believed because it it's not presented in the brief therefore in the same opinion that i was quoting from before the motion reconsideration to fidget grounds pacifically says that no one that realtors initially saw composed liability on corporations and then says or waive this isn't a complaint this is a new argument well if it's not argue whether it's in the complaint or not is in a way the more the point given the chief judge brown explicitly noted in your motion reconsideration hey the chubb corporation those folks i dismissed all that and no action was taken to amend or challenge that i'm i'm having a hard time seeing how  you can will stand silent after the district work dismisses all the claims against make no argument that the district work was wrong for the district work do nothing to seek to amend the complaint to repair what the district court said was wrong and say nothing in your opening brief on the point and then in your reply brief in this court argue the chubs responsible and that's enough to save your argument we didn't know they were going to come up with the theory reconsideration opinion then you should tell us that but if the district court was right that it dismissed your claim and that you didn't do anything to a man and you didn't argue anything further about it then it's europe it's a rel second round i'm sorry very good what paragraph we're looking at paragraph seventy three seventy four seventy five seventy six seventy seven seventy eight seventy nine and you think that each of these paragraphs all of them take the other seventy three to seventy satisfy the deficiencies that round the pointed out consequence of that errors the consequence your honor is it we believe that the this records review of the underlying claim determination was tainted or colored by that misapprehension regarding conflict actually influenced by the the temptation for self healing and what the court did was was it reviewed the factors articulated in the plan which may be reviewed to ascertain and stacked up sort of to ascertain whether or not the underlying claim determination was without reason because the factors might be so heavily weighted however the factors and glenn also go to determine the significance of the conflict and i think that is what how the how the district court below misunderstood the standard for example if one were to look at an award of social security disability benefits that of course is a fact to express lee state why the so security administration's decision was or was not credited might go to increasing the degree of conflict and therefore tipping the scales in all over as though there was no decision below and we submit that if this court does that and weighs the factors this court will see that there is substantial evidence that is evidence upon which reasonable minds could find that  that that signal was correct even if it's wrong of course of this record said you didn't follow your own plan and that was highly problematic with your response to the district court's assertion that you were obligated by the terms of the plan is to make some kind of a assessment to figure out whether he could earn sixty percent of a given earning before it's a vocational analysis right you are obligated you something you did nothing you're on are there again we respectfully disagree with the decision or below and here's into another occupation later and i don't think anybody argues that there was a problem with face ones are all about phase two right right right so in face to the question is whether or not they can perform any occupation for any employer and if they can they're not disabled provided  occupations are found to be able to perform would provide at least sixty percent of previous ability path right eligible path in this case cigna found during the second phase that hey you know mr funds  seen about the diagnosis but the limitations imposed as a result of the condition are no longer severe enough to preclude him from doing his occupation with losing any occupation for any lawyer including his occupation to lose so he could perform his occupation lose a previous ability then by definition logically he must be able to earn at least sixty percent in fact one hundred percent of his piece of the income so we found that that he was not totally disabled under even the more environment but there was still no vocational isn't analysis and also didn't dr cuomo say he defer to vocational experts which of course never never materialized that's i don't think that respectfully run of that's a fair weeding of the record now there was a suggested and this is where there's evidence of attending physician bias as an advocate he said oh yeah but that doesn't meet the sixty percent salary requirement in the plan that's where dr pincheck said well i'll leave that to the experts but ultimately that was just an interim conference between the two doctors that was not the basis of the decision ultimately dr k m and more importantly cigna the claim administrator determined that mr funk could perform his occupation and therefore no was different in the information available to the doctor who i am led to a difference in the ultimate conclusion from what judge figures just read you to the determination or the limitations relating to his condition had changed that they were no longer severe enough to limit his his limit in from performing the requirements of his job but my question was this there must have been something that the him coming to that conclusion in a low stress environment would work for mr ball at whatever point in time that was and then his ultimate that he  at his old job and function properly in i understand your question your honor it's essentially what changed in this condition yes but but but the question i perceive i think correctly from the mitchell opinion of dr king to say that he says here's from a severe psychotic episode you can't work so then saying he can work but your question is part of your question you come you say that and i don't think i think it's  incorrect dr james never concluded that mr funk could only work in a low stress supportive environment that was just a no to pass no in a conversation he ultimately terminations the initial determination of benefits and found that he no longer suffered from severe symptoms it was the severe symptoms which which led to the impairment from performing his occupation for example the records demonstrate and doctor came notes that the records show funk is not severe from not suffering from severe symptoms for example he no longer is drinking alcohol that result he no longer manager psychotic dr  not diagnosed with bipolar disorder however there was no information no no notice to support the diagnosis during the relevant time period there was no information regarding this extent of the symptoms provided by dr penshoppe but what we didn't know make some comments that was the limit of the investigation and based on that said well we we think you can still do your job that's if i got the record right respectfully  and if if you're on your security field analysis what you mean and when i said he he reviewed the records that wasn't an insult i'm just saying that's what he did never examined mr fung he looked at the records right that's correct this was a this was a decision that was made in the face of the so security administration's decision in the face of his treating physician in the face of his treating psychotherapist it was simply a passing reference of some fear fear hearing or if that's not the case here cigna doctor his decision his opinion in their in their first denial of august twenty second two thousand  decision there was another appeal after that right that's correct and every appeal within that administrative system is the noble right yes but i think this points to the procedural irregularity here of how the they had come to a decision on in entirely new evidence that was clearly sufficient in your last step you would say it's still reversible if they need a mistake  the process and how they arrive at the final decision i agree the final decisions which reviewable that we need to put into context cigna first terminated mr fox benefits on the basis of their determination which is clearly stated in their denial to cigarette paper he didn't follow your definition of disability your definition of disability requires that iron forty seven thousand dollars a year in an occupation there's no analysis of whether you could do the regular occupation any occupation or earn forty seven thousand what they did was simply get another medical reviewer and i'm examining expert to say something totally different he has no research therefore he can do anything and and if under our standard of review if they have a medical expert who says he can do he can work without prescription and therefore they say well you can go back to your old job is there a logical flaw in their assertion that t sixty percent requirement yes there's definitely a floor because they fail to reconcile two of their own consultants opinions i mean what you have is the trading doctor saying one thing i think even if we disregard the opinions of the shooting physicians in this evidence to support their position that's correct but the decision has already resigned if they've got somebody that is that says what they say the person says are they entitled to rely on th that is if you determination but it's not just simply substantial evidence is also whether they reasonably proceed it here and there's numerous evidence there's numerous instances in this record under clan other than the financial factor we did not release the financial copy it was thrown into the opinion it was a one sentence decision but we think this court can exercise going to review and look at judge harsh words decision here and see that she relied on at least five or six other factors how in the play of the financial i want to play out of you concede first there's not a conflict here yes ok so with if there's a weighing process going on here  post land and one of the factors and clearing him work is whether you've got a conflict or not and she says there is everybody in the case agrees there's not is that in enough itself enough to say well we don't know and see that she is very well thought out on all of the other factors under where these financial conflict was just thrown it is basically a one sentence in a footnote however there are numerous other instances the revers  court was actually the supreme court is actually the english in the newson case and if in effect saying in that case they just didn't they didn't read it right in this case it doesn't matter now i'm paraphrasing what i understand the holding of in asking you to respond it doesn't matter that the monies aren't in the hands of the of the plaintiff at the time the insurance company says i want to get reimbursed in order to require them as an equitable matter to reimburse well now that's how up i thought sirup office come on now and i'm asking you to tell me whether you basis on which they distinguish knutson said that's what's different here we're not talking about equitable restitution no he was talking about equitable restitution he says here we're talking about we're arguing that there was a lack of substantial of the support of the sickest decision and but the courts have held that you just don't look at the end result if you look at the procedure implemented i just like the statistical manual it lists cognition i was only one of nine symptoms to be considered when you were analyzing whether a person has objective evidence of depression you look at hopelessness helplessness suicidal thoughts but it doesn't stand for the proposition that is not the sable i think they were taking it for the proposition that he was not cognitively disabled and then relying on doctor should go to say he wasn't sufficiently ratz that not how they were no substantial evidence supportive of their determination it goes to the it goes to the substantial evidence standard that the lance says you must be able to earn forty seven thousand dollars a year given your  would they still be required to make the vocational determination well then change their mind based on the pick and choose between two of their soldiers one consultant says he has environment that was something that came up in the course of but kind peer to peer discussion with dr pincheck it wasn't part of his alternate the situation was part of signals ultimate decision i just on thank you thank you brothers i would like to i would like to pick up the discussion with the notion that cygnus ultimate decision or even its initial claim terminations was based upon villainy to perform in a low stress cognitively supportive environment  first of all i think the court understands that is not the relevant inquiry that's not the real point in time this court to consider the relevant inquiry is whether or not cygnus final thing the terminations was arbitra process is not irrelevant the process may be relevant it's most relevant in circumstances where there would be a conflict of interest to ascertain and instruct the court as to the level of the conflict or the love itself human influence with the was not the final word on the subject because about a week later cigna received dr passes report again it was it was a two day in depth evaluation order by is it attending physician after reviewing that repo put it this way we don't agree with that dr kay i'm stated that mr bunker worked and in a letter dated august twenty second i'm sorry my letter dated september fifteenth  couldn't function because he was severely depressed and and dr hans this report doesn't speak to that at all it just addresses something that nobody was ever disputing first your honor cogniti signs of frustration there was no note of fantasy toward mental fatigue which was a noted limitation initially distractibility noted limitation impulsivity limitation or a lapse in concentration which was also severely just letting it run its course so you get a chance to litigate and you can always appeals court the very and your honor absolutely there there is real prejudice here as mr johnson has already been through the removal process he's already litigated fully his case and he won he won years ago his case became final years ago the i have the opportunity to review the exact same record that it  not in physical detention and that's something that the government doesn't even contest the standard here is whether or not mr to has a subject restraints on his liberty not suffered by the public generally and the fast and circumstances of this case show that he is that he's got to show up for court hearings right i'm respectful here and those not yet restrained both also that he has to let people know if he changes address within five days i mean that was really an peters movement does it well your honor there is also the additional restraint on mr charles a by virtue of the fact that he was previously detained by immigration authorities that he is subject to being retained in any time for any reason by the immigration and customs enforce if anybody who's ever been detained previously is in custody your honor actually extent that they are interceding and to the extent that that that they are still subject to as m specific case which i guess is why i'm a little surprised if you're pressing him this hard to mean it occurred to me that you've got the the clear tory relief position you can take perhaps you can say under the administrative procedures  got all by itself right there you've got a federal question jurisdiction argument that you could be making i'm not i'm wondering why you're leaning so hard on in custody when the ramifications of what you're asking for goes substantially beyond m miscarriages of justice to prevent those miscarriages of justice it would not be asking this court to extend custody to everyone if we were simply to look at the fact reopen and ice was subject to the b s regulations to set a motion to reopen shall not be granted unless there is new material evidence that was not and could not have been discovered previously and i and what we are what we have come before this court for and have sought relief for is to prevent the relation of this case where his case was already final and i think that is one of the key things that we that we have to keep in m would that not be and next an exceptional circumstance to have a decision maker who was apparently not impartial making a decision if if the view only had a basis for saying that could possibly in this case we don't possibly constitute an exceptional situation because that actually was the basis for the appeal for the pure out your answer in a different question my question to you is not whether they're right that she was fi that still allowed hey vs review from the office seedings piecemeal fragile final order well nothing in the two thousand and five amendments changed the point about twelve fifty two b money twelve fifty two some other jurisdictional bases either they had a clear to each action act so we're not talking about here is really for tying the general jurisdictional issues here what is it about the two thousand and five amendments that it be the case that i mean it's going to me ask you this way are you not making an argument then that this is the type of thing which is beyond judicial review it's capable of repetition yet of a review right  i don't believe they are but you this is revealed without a doubt but not it is this one which is racial that's that mrs with their arguments their argument is not that i'm not subject to a removal proceeding it's hey i well they'll be able to go before the eyes of the answer my question when you say i didn't i didn't suggest that they were acting in good faith i'm just saying by your logic and as your opponents argue there's no end to that cycle is there logically there but if there was nothing new that that may be a concern there isn't fact new material here which although maybe under seal or something it's what was in the affidavit that was submitted in two thousand and seven by an f b i agent in which they wasn't said before is there something new in his affidavit that wasn't said before is it just a different conclusion yes i believe he what they we they considered new is this conclusion that they at this time cannot determine is it official is not a national security concern how how can one ever disprove a negative i mean if if the f b i comes back and says the information is the same but we can't say there's not a security threat is there any response t case there discussed the general proposition that reopening whether it's granted or the night is not subject to review what occurred in the bush case they the court addressed a limited exception was their legal error did the board say there's no jurisdiction to you and denial that's always in the context of has been said in concert so we don't have any standard measure that against here there is a standard is your court identified only one situation in which exceptional circumstances have been articulated in a consistent case by case matter in which the court could reason we find a v b i have cabinets discretion under that statute provided a meaningful standard for the court so what juncture with the person make it how is i guess i'm going back to the question of asking for but i don't feel like i understood your answer is there are no point at which a be put to its burden and be forced to represent what he claims are these national security interests that can be done in camera that he got his testimony but that is not going to break the i mean the petitioner here right where every point for now i mean unless there is i don't believe it appears here in this case the v a to figure that out though right i mean you seem to be making the argument that yeah there's no end in sight but don't worry about  and i guess i'm trying to figure out if i'm understanding that argument if that really is your pitch if your argument is it's true this could go on forever but don't worry we would let that happen especially that's your paraphrasing of argument i would say what is the end point i've heard you say he we have to presume they'll act in good faith but that's the only thing i've heard you say in this regard and that sounds to me like trust us and that's what i'm trying to let you know the belly up to use if it's true that your position is yes as a logical matter this could go on forever until the b i a gets a tonight a who rule against them as a logical matter that's true but don't worry about it then that's all i want to hear you say that's your position that's your position but if you've got a reasoned argument for why that isn't a risk i really want to hear generally when an accusation is made that they're acting in bad faith that they're doing something for altera purposes that they're generations down the road what would prevent your colleague from main justice coming up here three years from now four or five the ration is on the road and saying well you still don't have jurisdiction to look at for the same reason we told you back in two and the only justification for that is what the government can in the burden this next time but what we need to do here is we need to look at the circumstances of this case and what happen as the court is right we turn them out there can never be an end to removal proceedings in the event that someone wins and prevails and in you then that to the extent that there is a motion reopen that is brought by the government that the government is not held to the same standards as an alien would be held to if they brought upon a motion before the court for reopening that is what this case is that at the time one of the bases for mr chass granted asylum was actually in the mind that the security grounds of nine eleven security grounds that the government now says is  a material business and then released and in the ninety's decision the immigration judge said the f b i has found that you are not a danger you are not a national security risk and we thank you for  so that was fully litigated those facts were known as the court rightly points out there is nothing in the general say as affidavit that shows that these facts were not known and could not have been discovered previously there is nothing new material here the bottom line here is that all of this was laid bare not only before the immigration judge but by the board of immigration appeals the board of immigration appeals had to noble review power over mr chass case and it shows on the you will have no recourse you will have no choice but to be that hamster on the wheel again and again and again perhaps so while we ask this court is that mr chass has shown whether it be through behaviors corpus weather