please the court you're on are you ready ok thank you your honor this case is really about power and before i talk about the case law in this case i just want to bring your attention to a new case filed in the u s district court in the southern district of texas it's a rico case the case is just decided last week harris county texas versus a while only it is against two of the defendants in this case three of the a case yes let me ask you this whole the traditionally it's the problems of a prosecutor or a federal prosecutor to make decisions about what cases to go forward and what cases not to go forward d on and in many of them particularly the ones with some complexity there are a variety of factors to be considered why is it the business of article three courts to nd guess the judge exactly your honor you have put your finger on exactly the issue with this case the department of justice depends on the swift case and the swift case makes a fatal error it confuses bringing a case with stopping an ongoing case they are clearly different we can all agree that the government has discretion not to bring a case if it doesn't want to but as far as terminating an ongoing case those cases typically require additional judicial scrutiny like real forty eight dollars in the criminal context it's by leave of court like rule forty one it's with the  know all these cases the government has to spend at least some ta in trying to understand what the cases of cloud and what the states might be in going forward or not going forward so it seems to me that and to the follow later is to go ahead with a case when the government would not or could not intervene so that's one thing the nd thing is that this case is more like the case of the michael flynn case where the government is seeking here that is one of the biggest problems with the false claims act is that it requires a hearing on the motion and then to not have a substantive standard so senator grassley argues and this is typically what we learned in the st week of law school use the plain meeting role of what is a hearing and then you apply legislative history to it and so under the plain meaning role and senator  the district court that there is a sense can what is the level of scrutiny and you know why i guess the district court run here the district court essentially took a look at it and said yeah there is some validity to the government's reasoning why isn't that enough the district ok so the statute requires a hearing on the motion and the district court here really just allowed a motion there was no hearing on the motion it was just a motion and that is it and there was an exchange of papers the district judge considered them what were you planning to do at a require or a prohibit evidentiary hearing that is up to the court to decide but in this case there was an unrequited affidavit that the rollator submitted and there were credibility issues and the court could have asked questions and assess the credibility what sort of credibility issues itself well the government gave three reasons for denying the for moving to dismiss and one of them was resource burdens it's the government's case until ten months after it had to be she has to intervene and at that point we were three months into litigation and all of the defendants had filed joint motions to dismiss now if the government really had resource pardons it could have fat back and waited until the one hundred attorneys that that on the defendant side represented themselves against me the sole attorney of the relator and if they did not trust me then then the government could have moved in and moved to dismiss but instead it moved then right before all of these motions were going to be heard and so it added to its own burden by intervening so for me it raises the question of how bad was the resource problem when they were adding to their own burden and not decreasing at which they could have just waited and done they do anticipate a trial about all those yes i think there's one hundred and fifteen billion dollar some sort of hearing because it says a hearing on the motion and you could see that there was no requirement for the judge for the district judge to have it in cursive hearing don't you there when it says hearing judge is required to have an incursion in court hearing it is not required except i think in this case it would it should have happened because of several things because of similar cases being brought on the same exact claims against the same defendants and being allowed to go forward including what do you mean by even even assuming there are valid claims doesn't government still have that discretion to say we don't want this case to go forward because it creates a burden when there were a party or nat we're going to have to be involved and we don't want to be  yes except that i think the timing of their motion creates an issue of how bad was there but i think that it it it's not really credible well paul here death morning your honor may please the court charles taken for the united states although the false claims act allows a relator to pursue civil fraud claims for harms of the government and also gives the government broad control over those cases after all these are the government's own claims and as this court held in the florida case leaders do not have any personal interest in keeping him actions the statutory tax law is relevant here is section c two way which provides that the government may dismiss such a false claims act action notwithstanding the objections of the person initiating it the only statutory limitations on that authorities that the relator must be provided with notice of the motion there's no dispute that happens here the court must quote relator well that was the governor the later has an opportunity to oppose the government's motion they have an opportunity to be heard and that's exactly what happened in this case as the relator submitted written submissions in opposition to the government's motion but after that  so our view is that the that swift is correct that the government has an unfettered right to dismiss but there is a variety of ways that the hearing requirement is also given meaning st it as the court and swift how to provide the relator with a formal opportunity convince the government and its case nd it also provides a public forum in which the government must make its declaration decision the imposition of such standards even when they don't include substantive standards public in swift may warrant consideration of the denial the motion and let me go so i put it aside for a while give us an example of a situation where you think a district court could reject the government's alights into business so the government has not disputed that it subject to constitutional constraints and we're going to give a couple examples well for example in the armstrong case itself the supreme court consider whether a claim of invidious discrimination  d challenge prosecutorial discretion so to be sure that would have to be a substantial showing but the example in saw in armstrong for example would be as an example here where the relator would have to put forward color claims in substantial evidence that the government should be presumed to not be exercising good faith in the ordinary course which is the regular deference that should be accorded to the government needs  plaintiffs i'm going to see that it gets dismissed would a district court judge have any role d supervisory role in that context and the district judges role in that context would be to examine whether the relator has made a showing of violation of the constitution a substantial show was a constitutional violation was a garden variety political decision and so no in our view the district court would not have a role now but to be clear we want to emphasize here that that none of the with the standard to be applauded and that's what i'm seeking or systems on of course and i think one thing that's helpful in analyzing the standard is to look at the very next provision which is section c to b and that is where the court examines  whether to approve an assignment entered by the government and they're well look before we even get to the settlement what in my case it's clear hypothetical it is clear that a political decision was made that we don't want these defendants chase anymore their major contributors that personal friends i don't want this to happen does that district does a district judge have any role in such a circumstance the district judges role in that circumstance would be to analyze whether the government violated any of the constitutional constraints in its in its exercise of its authority at any even if it was just a naked political decision absent one with constitutional demand since it's your position that the district judge still has to be a rubber stamp and not to be a rubber stamp but to analyze whether the government has violate any for example but to be clear if we look i just want to point the court to the very next and see to be i know my time is almost up but the court there you know makes clear under the false claims act made clear that there is a substantive standard for a court to review and one it's a it's a familiar mode of statutory interpretation to draw a negative inference from the lack of such standard in india immediately adjacent provision c to a and i think the yes good morning your honor while we agree with united states here on the substance we believe there's a threshold problem which is this court does not have jurisdiction in the supreme court's case of eisenstein supreme court unanimously held a set forth a rule that is clear and predictable and that is that in that for purposes of fuel for the united states is a party to a false claims act case only if it has intervened in accordance with the procedures of in the act and appointed three b two b four and c three you know why aren't you just you know going on a simple simple form i don't see how the government can file a motion to dismiss unless it actually has intervened its problem is it didn't put the word and motion to intervene on its motion to dismiss but it's acting in the case as a party when it files a motion to dismiss that's an intervention circuit in chang the th th and th circuits have all helped but the united states is not required to intervene in order to follow suit to dismiss and the statute does not contain any such requirement and there's a number of reasons st of all previous two contains no such limitation unlike other provisions adjacent to it which do apply and secondly even even the government doesn't agree with your position well honor this is the commonest as it is related getting the same position but they argued eisenstein and the government has an interest here they want to get sixty days also it just doesn't it doesn't make any sense that you can come in make a upheld but they don't have to intervene and in the footnote to advise in the supreme court specifically addressed one of the to carve outs of the united states asked for which was c to a the other one is a situation very analogous to this which is where the parties to the case decide to dismiss it and united states comes in and says we object and the court dismisses the case anyway in the government appeals and supreme court of footnote to said even there the united states is not a party for purposes of route four and your honor if you were to hold th by following the most the dismissed effectively of intervene it will create very perverse result i respectfully submit under the false claims act in a number of ways st of all the government's whole motive for seeking to dismiss here was to avoid the burdens of rd party discovery under the position the relator is arguing for in the price united states must pay or even just a file that motion is to accept the burdens of st party discovery by intervening and secondly your honor in a situation which we hope is rare but they could ha it the government's interest in this and the government's position is quite lives that there was there was jurisdiction i understand that but the court has satisfied self that they're subject matter jurisdiction if you're on a looks at the  it bases its conclusions on three false premises the worst of which is a useless heckler to say something that has does not say how clear is a case about initiating an action under the administrative procedure act this is a case about terminating an action they are completely different things and all that unfettered discretion language that's from heckler that's from initiating an action and these are very different circumstances and the other thing is real forty one does not apply in this case because the respondents had already responded that they had filed motions to dismiss the swift course also did not read the statute in its entirety it left out the hearing requirement in its analysis that there is no judicial review with that which is crazy to read the part of a statute in our whole thing so i would caution the court carefully to look at page two hundred and fifty two dollars swift before you even think about relying on it and that's where the government's unf discretion arguments come from this is a case with a gigantic fraud allegation one hundred and fifteen billion dollars worth of damages i think it was worth letting the relator at least try to handle those motions to dismiss by the defendants and also if you give the government unfettered discretion to dismiss it's like giving it a ring of power it can get rid of whistleblowers who are inconvenient who say something that's politically incorrect who