morsi versus rome the bane decision was decided by this court in two thousand and four with judge smith on the panel and marcy it was decided four years later with judge janice on the panel both of those cases held that an assessed penalties cannot be the proper subject of a viable claim under the false claims act this court's holdings in those cases were not legislatively overruled by the two thousand and nine amendments to the post claims act and instead the holdings of this court have been uniformly followed by courts around the country after the two thousand and nine amendment without exception other than this court the district court's opinion in this case the district court here is the only court that has not followed this court's decisions the decisions in mar an band are much like the underlying action here in bank in our case was by alleging violations of the clear in air act mr ban claimed that his employer had been releasing vinyl chloride the court and band was asked to determine whether the alleged violation of the clean air act which imposed penalties for that kind of violation cognizable under the false claims act the court was presented with multiple views one by mr ban and one by gov and then a third by the united states as a megace the court addressed a decision by the six circuit and a t m also known as american textile manufacturers and which the six circuit had taken a narrow view of the verse reversed false claims provision and found that a reverse false claim is not cognisable and last the amount owed to the government has been did not have to choose between eighty and miles extreme on one end and the view espoused by the government on the other but instead it found its own answer and there the court found  it's clear that when the statute involved involves only a potential geisha and for the imposition of penalties that obligation is not sufficient to give rise to a claim under the false claims act in marci that the court noted that bain had accepted an intermediate position and made the same finding when there mr marcy complain that his employer was dumping oil and other contaminants into the gulf and had violet violated the federal water pollution control act again recognizing the limit and being the morsi court found that because an environmental penalty statute was it issue and there had been no attempts by the agency to impose any penalty or to assess any fin substances control act section eight requires manufacturers to give notice to the e p a of certain kinds of information identified as substantial risk information substantial risk information is information that a company learns that a substance presents at risk of harm to the environment or to human how where the e p a does not already have knowledge of that kind of information if there is a violation of the notice provision there is a potential for penalties under tasca in section twenty six fifteen what  congress did there is that it gave full control to the e p a to assess whether or not there had been a violation and that if so to impose penalties that could be civil or criminal the e p a could choose from or no ray of options penalties would only be imposed after i required administrative procedure instead of a penalty it could impose a criminal penalty with no fine and this court and the new ok switches side in our brave this court addressed the imposition by the e but that it chooses from a whole host of remedies including permitting the penalty and employer imposing an alternate economic request to the defendant  it considers and also balances policy when making the decision as to what kind of penalty if any to enforce and to assess  there were a vision that came in in two thousand and nine did expand the reverse false claims act provision by adding the definition of obligation but the expansion did not go so far as to eliminate the limits set by this court and all the others that penalty provisions still do not apply the definition that was i should and still require that there be an established duty to pay the government the obligation it wasn't as narrow as a t m are where the obligation had to be fixed and definite at the time of the false claims act but instead was slightly broader but not eliminated penalty provisions altogether and in fact when the senate committee discussed the wording of the amendment the senate committee specifically retained and added established duty to make sure that cases like would continue to be a viable live side of the court to a host of cases a number tiriel those that have followed this court's decisions after and briefly if the court were to vacate its decisions and adopt mr simmons has view here that statutory penalty provisions can be the subject the false claims act the results would be absurd and we saw that play out in the district court below when we tried to take this issue all the way through trial and did take it through trial the court recognize that neither it nor the jury could assess a penalty  that was reserved by congress to the e p a s so then you have nothing to triple there's no penalty there's been no penalty to assess and so the f c and trouble damages card has been put a head of the penalty of course it just didn't make sense so we urge this court to follow its decisions and marcin pain and find that there is no viable false claims act claim set forth here and once the court does we then ask the court to find that mr simoneau has failed to set forth a viable retaliation claim under the false claims act t viable the investigation of it is not in further as oppose claims act claim and so it's not protected activity may please the court every whitaker from the department of justice for the united states we've supported the defendant's position in this case that assessed fines and penalties are not a basis for vers false claims act liability i just want to stress that it is important to the government how the court gets their to that conclusion because it's certainly true that in the two thousand and nine amendments to the false claims act in a deed following a number of court decisions before congress did indeed intend to make actionable and wide range of obligations that are indeed in some sense dependent on the exercise of some government discretion and in particular those obligations that arise out of some kind of where a defendant has some kind of preexisting payment relationship with the government such as an obligation arising out of a lease a contract a grant or green tea relationship and the like and so it is clear that there are certain contingent obligations that are actionable and i'd point the court we went to the court the legislative history in which congress in the legislative history and indeed in the text cited with approval the tenth circuit decision in iran which recognizes that principle that obligations that are contingent on the exercise of government discretion in our action both a rise out of the payment relationship and that language is reflected in the text of the false claims act in making obligations that are on fixed action even if they are unfixed their nonetheless actionable what would be a fair in your view a fair example of that proper application yeah i mean i think in a an example would be a medicare overpayment i mean in the medicare context the way it works is  a contractor medicare pays contractors throughout the year estimated payments and the amount that a contractor actually owes may not be fixed until after there is an odd let's say so before the two thousand and ten and some contractors made the argument that well before the audit is actually conducted our obligation to repay an overpayment isn't is that contingent in some sense and it's very clear in the definition of obligation but that's not a good argument that the definition of obligation clearly does include overpayments another example your honor would be just an obligation arising out of a government contract obviously when there is a payment obligation that stems from a contract that may be contingent in some sense in the government bringing a suit for breach of contract but say that doesn't mean that it's not the kind of contingent obligation that may be actionable in the reverse false claims act in this court indeed recognize that principle brackets that kind of situation and not reaching that and we don't urge the court to take a similar approach today notably i mean in approving the tense and i mentioned it and circuits reasoning and iran which was approved i think by congress in an act in the two thousand minutes the ronnie approved cited this court decision and bane and so on i think there is it's quite explicit evidence that congress approved this court of a line this court drew in  vain again this this court through the same line i are very similar line at least to that line and urging the court to drop today however i mean though it is the definition of obligation is brought we do think that it is not so broad so as to reach an assessed fines on assessed fines and penalties we don't think that the false claims act is an all purpose law enforcement tool and if you just open a random provision of the federal criminal code let's say you will see you will see language that is just as mandatory as the civil penalty provision that is at issue here it doesn't it can't be the case that the false claims act permits enforcement of of unforced criminal statutes and i think the same reasoning would apply to the state to the statute that is before before the court and the decision we'd urge the court to draw there is that i mean there is line of cases which we've seen we've cited supreme court cases that discuss the distinction between statute to create penalties and statutes that create other kinds of financial consequences to conduct consequences but to conduct that congress has defined as in some sense wrongful or unlawful as opposed to a tax or another example in our view would be a customs duty which is attaching financial consequences otherwise lawful conduct such as the importation of goods and we brought all the parties have brought the court's attention to the college case in the third circuit as an example of a statute that creates a monetary obligation to pay money to the government a penalty statute however is is different in that it just creates it simply creates an obligation to obey the law to not engage in the conduct that the government has date different than what it would have been some time back so you concerned about maintaining the sort of africa c e o position your takeaway so was it something different about supplement the record on appeal with that statement you can't even look at the statement in the district court docket to decide it's it's restricted from view but you can the defendant did attach that i think that motion was filed may nineteenth two thousand and sixteen so we did honors i guess i will start with the last point that was made the statement that i think was submitted and i realize it's not part of the record but since it's been discussed i feel a need to respond addressed the tasca statute and the meaning of the tasca statute the legal issues that are being brought today i do not believe were the subject of that statement i'm shown in this shell could correct me if that were the case but i do not believe they were the arguments being made today the government not for the benefit of relate or is designed for the benefit your own or of the united states people not the executive branch or the e p a or the attorney general and we're here to ask t court to enforce the law as written our opponents come before the court and advise that they do not want to apply the current was written the district court properly applied the plain unambiguous language at the top and false claims tha know i mean that's the statute but we have case law and i was in a clean slate so your honor i'm glad you raised that because there was a lot of discussion about bang and how it was parts of it still survive there were two limitations in banging and my opponents are creating a bit of a red herring because they're only talking about the one that bain recognized and didn't follow and that that was whether the obligation had to be absolutely fixed in the amount at the time the false statement was made the fixed obligation portion of banking is not really the issue anymore the new definition clearly says that the penalty amount or the statutory obligation can be unfixed but what my partners have not discussed about painting is that it relied on american textiles analysis and the old law as recognize bain specifically recognizes a page six fifty four it was americans textile and american textiles analysis that a defendant must owed to the government an obligation sufficiently certain to give rise to an action of debt at common law that's this financial relationship concept that was used in bang and that originated in american textile so there were two limitations on the false claims act that being looked at one was this relationship issue and that came from american textile and the other was whether the amount of the obligation had to be fixed and my opponents have focused today on the fix for the fixing part that's really irrelevant that statute clearly says now that the amount is not to be fixed but that relationship standard is no longer the law and vic tali in the third circuit recently recognized  that interpretation by american textile was too narrow and that the f c a new definition of obligation and the new false claim provision in thirty seven twenty nine a one g b have supplanted and broaden the definition that american textile used that portion of banking i submit is abrogated by the two thousand and nine amendment and that's the part that matters because i don't think anybody is trying to say that we would have to know the exact dollar amount of obligation as newly defined to pay money to the government and that dupont knowingly concealed avoided or decreased the child legation that's a limitation on this liability that is important when you read all of these scenario where you end up in front of the administrator in other words the person who's got the substantial risk information hasn't concealed it he has given it to the administrator he is in front of the administrator that was not  dupont concealed information all the way until after our trial that's why we're going to have a new trial so they were not in front of the agency waiting to have an administrative proceeding the new case i'll just mention while on that topic that involved in an ministre give a penalty under a and e p a regulation it did not involve a statutory penalty under the u venue in which you can determine the prerequisite facts for liability is at the e p a there's no authority for that and there's much authority that you can assess that in court three  browner is one of those so to get to your question in twenty six fifteen eight to the fixing of the penalty that is where the discretion the only discretion that arises under tasca posen are twenty six fifteen a two and it is with respect to the amount of the a pit amount of the penalty which doesn't matter into the new reversals claim because it doesn't have to be fixed and the definition of the ability to remit modify our compromise is not intervening discretion that's the important point in marching in vain they found that there was intervening discretion between the obligation to pay under the old financial you know common debt sort of assessment there was intervening discretion now there's no intervening discretion before there is a stablish duty to pay penalties under the statute the penalties are mandatory so the statute gives rise to a mandatory penalty and a duty to pay it yes on the back end after such violation has been demonstrated the e p a if you are in front of the e p a has the ability to remit and modify the  penalty only the agency has the authority to assess the penalty in the first place isn't that right a court can't do well i'm not sure i agree with that your honor and three i'm versus brown or actually speaks to that and says of course the court can enforce the penalty action in the first instance you do not have to start in the agency but we were respectfully submit that we don't reach that right now twenty six fifteen a two is about the fixing of the obligation in this case it is not about the duty arising from statute that creates the obligation in the first place for purposes of this case and remit it means according to black's law dictionary to give up to pardon to forgive to a kno thousands or punishment so that is something on the back in that someone could do if they were after there's already an obligation to pay a penalty but it does not  conceal their obligations based on their own self serving excuse that their duty to pay other established must actually be based on the information available to them might be remitted modified or compromised once there's a duty to pay under statute which is in twenty six fifteen a one which is mandatory as reflected by this court's decision in deepwater horizon once that duty is in place if we can prove that they fraudulent concealed the duty to pay penalties we have a reverse claim can but once once a person is guilty of of of of of a violation of that's that's an established a violation in in law is that right now your honor if that person knowingly conceals information to avoid the payment that's what we would have never knowingly conceals his or her actions is that right and to avoid the payment that's what we have to prove in the trial is that they will they have concealed information about that obligation now the judge addicted to me let me give you a hypothetical i think this is far fetched and silly but it's a real regulation so i'd like you to examine it and tell us how it would work out of a false claim that has nothing to do with your case my resourceful locklair found a good example there's a federal regulation that prohibits rollerskating at the national institutes of health and it says that a person who who does that shall be fined under title eighteen imprisoned for not more than thirty days or both let's assume that a person engages in roller skating the national institute for health or there are signs posted saying that you may not do that and when approached by a guard that person leaves the premises try tries to get a get away or is penalty of not less than five but not less than five thousand dollars now or three times the amount that it's entirely teen because he he or she has has has willfully violated the regulation that was clearly posted and has tried to get away with an obligation by by leaving the pros i guess the first issue would be and i think it's the strongest one is that it's not a statute it's a regulation this definition says establish duties arising from statute and so i do not know and do not purport to suggest that every regulation would give rise to the kind of obligation that meets the statute our hours the pope penalty is at the statutory level and that's what's been very important about this case and then of course you would have to prove concealment and you know could they concealment of the payment obligation and you would have to have a lawyer wellness and lots and lots of time to take the case to put and they would have to racing which which says makes that clear and so i don't think as the government suggested that every criminal statute is all of a sudden a basis for a false claim said but i do think that we have to apply the law as written when a case comes before the court that meets the requirements and can meet rule nine b and has mandatory penalties at this as surely level enough to answer your question specifically we believe that the court could either refer the issue of fixing of the obligation to the e p a which i believe was judged six indication at trial it came to the jury verdict form and she decided that she believed the jury was not going to that she was going to refer it to the e p a under twenty six fifteen eighty two but the obligation exists and so this court would have to undo three inverses brown or and it would have to say that the definition of obligation only means that song to these arising from statute some established duties arising from statute meet the definition but not an established duty to pay arising from statute for purpose that congress could have carved out civil penalties from the definition that they did not and they knew that the decisions out there that are left standing now after the abrogation of american textile the case is left standing are mcguiness pickens and sequoia orange they had held that environmental civil penalties at least one of those i think two cases involved environmental penalties could be the basis of a false claims case that was back in the old and so merican textile disagreed with mcginnis and pickens it followed a case called power and that's where the fork in the wrong road was created and american textile has now been abrogated so the case is on the books are mcgines panel this court cited in one nine hundred seventy five case u s versus g m under the same statute where the appellate court when reviewing the e p a s assessment of the penalty could only reduce the penalty to one dollar because it was deemed to be a mandatory penalty amount reimburses browner has long said that the legal duty a rises when you commit the violation we would be undoing that i believe if if we end in an effort to not meet the definition of ca if congress and wanted one they could have written one we have alerted the court to the supreme court johnson versus railway were two federal statutes one here being the f c a and one being tossed as section the twenty six fifteen eight provision can both provide related remedies directed to most of the same ins and they may co exist and provide a choice among distinct and independent avenues that whether one is administrative or judicial and that's the supreme court johnson versus railway so the fact that one could go to the e p a under tasca doesn't mean it's required in three inverses browner makes that clear the statutes that would support this being done in federal court it doesn't speak to whether the court can actually make you assess it the statute does say original jurisdiction in thirteen fifty five twenty is c section thirty fifty five and then citizens the provision makes it clear that there this tosca statute is not trying to supplant other remedies such as the f c a twenty six nineteen says nothing in this section show restrict any right which any person may have under any statute or common law to speak in forsman of tonsil or any role order under this chapter or to seek any other relief so there is nothing that says you must go to the e p a and that's especially so given that the federal agency you might decide to compromise or is the same federal age as they might be too busy underfunded or otherwise disinclined to pursue the obligation of the united states hence the  you i'll start first with judge thomas question jeff smith your question about the rollerskating is spot on and that's the reason why the courts have feared that if a general duty to obey the law can give rise to an f c a violation that the view would be way too broad and one of the cases is an example of someone going to the d day museum for the imax movie and paying these student ticket admission that rather include the relationship arising from statute or regulation further appealing to the statement of the united states counsel suggested that the united states does not take the position that the has to make the decision in the first instance that is incorrect in the statement of interest with the united states filed below it says specifically that the e p a considers that an obligation arising from a violation of tosca does not occur unless and until there is a finding by the e p a that such a violation occurred and that the imposition of civil penalties are warranted it goes on in that same vein and does address the issues here that the district court should not in the first instance be evaluating whether or not there was a violation of the statute that is uniquely within the purview of the e as delegated to it by congress and the idea that the court would send some kind of a letter or directive to the e p a saying we have found your statute violated now impose a penalty and sent it back and i'm going to triple simply a district court decision that addressed the such of the limitations there's a statute that says that the united states can't bring an action for penalties after at the time of brown or it was four years and so were brown or looked at only looked at was what the statute of limitations was for the e p a to bring an action under tasca and the court there found that it was four years stretching it beyond that is improper so again we just ask that the court follow its decisions and which continue to be a good law and to dismiss the case revers