say are you ready ok ready may please the court patrick cooper for appellant peter mack the i would like to reserve five minutes for rebuttal so therefore i'm going to try to be brief i know honors you know the question before the court right now is whether the district court judgment is excessive i know your honors know that's a question of law to be decided they know by the court your man of the judge it was seven hundred thirty thousand dollars according to the government and the district court bought into this argument mr mack this conduct in this case authorizes a judgment under the false claims act between seven hundred thirty thousand and eighty six million dollars so the government and district court says they're for seven hundred thirty thousand must be eminently reasonable we believe this argument would render the false claims act unconstitutional for at least two reasons first because it would constitute an arm awful delegation of authority as this court is well aware congress must not only in walls determine what conduct is prohibited that must also determine within some reasonable range what the penalty for that would be any that could be interpreted that would allow a penalty of between seven hundred thirty thousand and eighty six known and we submit would be unlawful delegation of authority to the executive branch and most respectfully to the judicial branch second even if congress could get like eight that kind of authority the kind of authority toward between seven hundred thirty and eighty six million then we believe that w do process to distance and to a different like mr america the because there would be no reasonable way of knowing what penalty would result from what conduct so it's our position that the government's primary position in this case must be think i can't answer that i think you better ask the government i know there was a criminal attorney involved at some point but i am not privy to that wasn't you me that was not you that was not i you know i'm a civil attorney somewhat uncivil  injury caused by mr mcveigh's conduct and there's a reason why the government didn't offer any evidence and couldn't prove this because this is one of those unique cases where services were actually rendered undisputed the services were appropriate this is not one of those false insurance and you are capped at a certain amount in this case this court said in its previous decision it's likely the patients then would have gone to a physician or would have gone to some other kind of provide or supplier where the benefits would not have been capped so the important point is maybe mr mccabe would not have received the amount in excess of the cap but the government would have had to pay out that amount or more le is that right after mr leary reads mr matthews business because of that point you no longer has a license physical therapist who is an owner of the business and obviously you're on his very own and on a very important question here it's our three hundred thirty thousand dollars payment this this concept that the government says but we therefore could impose a range of damages and penalties from seven hundred thirty to eighty six million i think presents a real problem with  statute but i i do want to come back to this it's our position it's critical that just because there were payments in excess of the cap doesn't mean the government was damaged legally damages would require them to prove they got worthless service reimbursement from the government for services provided in at some point after i begin doing on the board of medical examiners in the state where i practice takes my license away and i and i no longer have a license and i don't tell the appropriate government agency about that and i continue to provide services and continue to get paid is that in essence what happened most respectfully i don't believe so and i don't mean to be overly technical but this concept of provider becomes important here because it really wasn't a he was not a provider and your hypothetical you said physicians not a provide  he's not a provider either i mean you use the word provider decision neither of them are quote providers therefore they don't have to have agreements they can be nonparticipating suppliers of physicians if they are cure patients come to them they can treat them and they can get paid but to answer your question if that if a doctor doesn't tell the government that he's not licensed yes he should not get paid on the situations we don't believe that's the situation here we believe that continue to be licensed  contractors are not employees your honor right that's how you read it in the most technically way in one thousand nine hundred eighty the secretary said that's overly technical we put that in the brief we are going to recognize because the reality is independent physical therapist practiced in groups that are owned by lay corporations our position is if the statute allows the secretary to do that prior to nine hundred ninety eight as the secretary obviously running out of time here the government relied very heavily on the district court decision hayes versus hoffman and paid at pages forty and forty four of its briefs for the proposition that even if the government doesn't suffer a loss of well your honor the way that it was actually arrived at by the district court is because the government drastically limited its request for damages and penalties we there were eight thousand four hundred ninety nine false claims submitted w mack these fathers now for during the time period issue in the trial at trial we only asked for a subset of those damages and we only asked for a very small subset of those claims   and i just would like to point out that judge fletcher's point that the regulation required physical therapists to be essentially independent contractors to bill medicare that's exactly right comply with the regulations that were it is true at the time when the regulation was changed h h s department health and human services make clear it was changing the definition it did not make it retroactive it said from this point  d this is what happens mr mccabe had to comply with the regulations in place the time he did not he violated them he used his father's number to pretend that he was complying and because of that the government paid out over three hundred thousand dollars that it would not have paid out had the claims  allow physical therapists yes there may be a technicality here but it's not a coverage issue most importantly the question continues to be that if the government hand painting this dramatically if mr mccabe had been quote found out and not had the opportunity to lose money for seven years serving medicare patients and then they would have had to pay some other provider and perhaps more some other supplier and perhaps more it's because these orders are these services are ordered by doctors so the patient if you can't get them an asher clinic will go somewhere else so i can't see how the government was the last part well it's not no harm no foul because they say that's petersen the peterson is different because no harm no foul here because we don't have