material as a matter of law in concerning the government's decision to pay the invoices that were presented by raytheon for the work on the fears sensor this was a completely erroneous decision but they don't i have one concern that i'd appreciate your addressing ordinarily when a new complaint is filed that's the only complaint that we're allowed to look at in determining whether the pleading you've sufficient and the fifth amended complaint contains not much in the way of detail at all the fourth amended complain contained a lot of detail but there's nothing in the in between that how can we find the level of specificity that's required in the fifth amendment complaint or is is there some theory on which we should also look back at the fourth amendment comply well we were responding to judge wright's requirement that he found the fourth amended complaint in comprehensible right but you don't i mean that that's that's the reason there was a fifth amendment but it doesn't have to go from you know hundreds of pages to nine pages or whatever well there is an in between that makes it comprehensible but detail then i guess that's my concern to me your honor all of the key allegations that are in the fourth amendment amended complaint in loving detail are summarized in the fifth amended complaint the willful and the liberal false vacation of records and test results in order to conceal the non compliance with the mandatory provisions of the contract of the convience contract and also of the what was called the end  which was prepared by the department of the air force which was to govern the all of the project of this satellite system called in the post of yours was a component of that so you can trace in  paragraphs of the complaint all of these allegations that are being made and i would like to remind this court that the fourth amended complaint was found perfectly comprehensible by the ninth circuit in the mccaskey one case which dealt with the public disclosure bar but the court specifically found that many test we pleaded false claims and was basically saying now it's time for discovery on these false claims judge wright rejected that when the case went back to him and said where do you know we still have the who what where why of wrong and that's required and so for example like a materiality a key element here in situation the district court says the only thing you have are conclusions you don't have any details so if you would let's use the fifth amendment complaint as our baseline here and maybe you can point to me page number that would be helpful all right discussed were the we identify all of the deviations from the mandatory build provisions of the contract we then go on to you don't have to have a hundred forty three pages to say what the key elements are so that my concern is that we don't i can't see that here and then i also don't see that you asked on appeal like for another chance to amend is that true on this appeal yes we have not asked for another chance to amend but if if that is you know we were caught disclosure bar but the case very pointedly said that matesic he pleaded false claims and it goes on to elaborate what the false claims were which were false casting false false test results false record keeping in order to conceal in order to conceal the very fact that they weren't performing in accordance with the mandatory provisions of the build  contract and the any good and the end good was a very very precise prayer by the government for all of these satellite programs and said you needed not one but t contracting officers to sign off on any mandatory provision of the ending it that was not that was not done and so we un made it in for the district court as it as we were required to do and we asked for we submitted it and he dismissed it again saying not on the grounds  that the complaint didn't give enough detail but he just missed the catch the case because on the grounds that we did not adequately plead a false claim and we pleaded three false claims we pre implied certification that this court then said in this case that the that the the requirement for all of these false claims was and it a specific misrepresentation that if you told the truth you revealed material facts are going noncompliance with these provisions would be false now that is not a requirement for factually false or vacation it is not a requirement for express false certification and it is a requirement according to this court for implied for certification we did plead on information and believe that there were these false representation is which if the truth were revealed would be misleading have pruett's but those are not required for express for cervical actions and for factually false claims now as for materiality materiality is alleged in the complaint that it affected that's just a factual false claim we they made a false claim because they submitted something or they it was a false claim because it didn't comply with something and well that that is alleged clearly and i know but that's not enough so that's the problem  u can't just wave your hands and say well we allege false claims it has to meet the line well the specificity that is met because there are no individual the nine b a good morning your honor as i may please the court paul wolfson for raytheon the fifth amended complaint in this case suffers from two fundamental defects first it fails to allege a false claim under any of the theories of falsity that the courts have recognized under the false claims act indeed it fails to allege anything specific about a claim at all without any specific allegation that raytheon made a statement representation sort of occasion or assertion of any calling to the government that was false or misleading the complaint can't go forward a second and separately the complaint fails to allege that any falsity was material to the government's decision to pay raytheon invoices as the supreme court explained in escobar where the government continues to spend pay despite having knowledge of the violations that is quote very strong evidence unquote that the representations were not material not so let me ask you sort of an overarching question the fourth amendment complaint was at the other end of the spectrum from previous counsel who i believe have passed away between the fourth and fifth amendment complaints or  and it may have been overly detail but it seems to me at least that it may have met those requirements and i guess i'm troubled by this this is not a sort of potentially some of the reasons that he pointed out and i guess what i'm wondering is whether this is accused that would benefit from mediation the complaint there have been many efforts to to write a correct compla which so far have been out of mailing but it seems to me that the allegations are pretty serious ones and i mentioned you may not be able to answer the top of your head but that was a thought that passed through my  understand i'm not in a position to respond about the possibility of mediation right now let me make a few responses to the points you made first of all just to be clear the yours is operating and it's operating beautifully and you can go on the internet and see that the data and the pictures that it is transmitting now i recognise what you know what he is alleged but i just i just want to be clear about that secondly the fourth amendment complaint was yes extraordinarily detailed about some things it was not whole specific about the contents of the claim made to the government so that that is not a difference between the fourth amended complaint and the fifth amended complaint and it is not that's a problem that the district court pointed out in its order dismissing the fourth amended complaint the second time it's it pointed out that the complaint was sort of excessively prolix but then it also observed and by the way there's nothing in here about the actual claim which is th mean his theory you know which is in the which is in the complaint which is in sort of thirteen fourteen fifteen and sixteen of the complaint is that the complaint is i'm sorry that the claim the invoices with there are you know  contained falsity but he has not alleged anything specific to allow the court to reach the conclusion that you know he states a claim under even rule eight much less you know rule nine b i mean he i think he's quite straightforward about  says i'm alleging on information and belief that there was a false certification and i think what he's essentially saying is i don't know i don't have the information but it just must have been so you know it must have been because and i think he's quite honest about this quite straightforward because i worked for a long time in the aerospace industry and this is what you know just contractors do this thing that's what they do or you think that's more than that and i don't think that you're arguing that he has to have been in the bill for the court to be able to to stay with particularity that that statement in or accompanying the bill was either expressly false or you know has as the court explained in rose sort of  best a half truth in the light of the affirmative miss the an affirmative statements that he made so if you look at the court's decision and rose i think what that did is it sort of brought all the three theories of falsity kind of into alignment and said there has to be some sum of firm it is sort of some affirmative statement representation assertion sort of in the bills or in you know to the government from the contractor that goes on in this building does bother me because i know that there's interim reports there are interim certifications that are required in government contracting that are not tantamount to bills they may have be a predicate ultimately ending  they there could be occasions on that but first of all that's not you know he hasn't alleged that that's where the falsity was and he hasn't alleged anything other than it was you know we hear what he says is that the invoice just must have had a false certification i mean that's the theory which is made and that's not in any kind of operative difference between the fourth amended complaint and fifth amendment complain that defect was there before the district court gave them a chance to fix that when he amended his complain  usually the bills are kept of course but company in the accounting or billing function and engineers and other people surrounding the project aren't privy to those so how could he make such a specific allegation i mean i think there are related is who i mean there are i think there are relator who do have that information or you could have a case but i concede a minute ago that that's not required and  a certification or some are out there or check but it's not it but in the complaint doesn't tell us that it's the complaint doesn't indicate that it's anywhere it doesn't say that it's anywhere in anything that raytheon submitted to the government he says it's in the bill that's his theory he doesn't give us any reason to think that there is anything in the bills he's very open about that and says it just must have been there because that's just what contractors do and then he relies on the far reaches a point that we've responded to at l complaint to say that that's just not not a legally correct and then he relies on his adverse inference theory that he ought to have been allowed to have the benefit of an adverse inference but that's as we've explained in our in our brief that's just not a cognizable theory that we just get around that which is get around will nine be and really would turn you know would sort of minimize the importance of will not be as a as a gatekeeping function if i'd like to spend a couple of minutes on materiality if i may unless the court has further questions on latha russia the they like to turn now to the point of materiality the supreme court's decision in escobar makes clear several things first of all meant scuse me materiality is as the court said a demanding standard materiality has to be pleaded with particularity as well as as well as falsity and materiality can be resolved on a motion to dismiss at the pleading stage the court clarified the materiality and i quote looks to the effect on the likely or actual behavior of the recipient of the alleged ms allege misrepresentation and third in explaining why even if an express condition of payment is not necessarily material the court stressed that if the government pays a particular claim and spite its actual knowledge that certain requirements were violated that is there restrung evidence that those requirements were not material those statements by the court make clear that the alleged misrepresentations here were not material as a matter of law here we know what the actual effect of the alleged misrepresentation was all that goes a little bit further the court said that it's strong evidence but it doesn't say as a matter of law the payment not not in every intentional material i mean certainly not in every case we're not arguing about i mean in this case we're you know we're moving to dismiss on the pleading stage and i think given this very strong evidence of material i mean we know that the government had detailed information of mr matesic is information the government did a thorough investigation but nonetheless he continued to pay riffing on it accept the satellite accepted the sensor and it declined to intervene you know mr matesic you filed this complaint under seal in two thousand and six he immediately launched into an extensive series of discussions with agency and justice department personnel and despite all that information the government continued to viewers program it continued to pay and it accepted the satellite now but you can i forgive me for interrupting but the government did decline to intervene but it's also continued to pipe in and doesn't want this dismissed without prejudice and that seems i mean what i would say what's noteworthy about what the government has done here is it has not filed a brief in this court you know taking any position on whether the you know suggesting that the dismissal was incorrect which it certainly could have it was it is making the decision to pay not by what the litigators at the department of justice think you know ten years later when they're deciding whether whether they want to bring a lawsuit the government have the opportunity to intervene  asked right in so you know your time's ticking but i just want to give you a chance to respond because my read you know a million miles away from this because we're just an appellate court is that they took six years to decide not to intervene there were a lot of attempts it seems to me to amend the complaint perhaps to convince the government to intervene the fourth minute complaint got to the place where it had lots of detail maybe was described as being tough to comprehend because it had so much detail at least arguably if you're if you put yourself in the shoes of your opponent and then we have these the government you know some of the legal issues in the case that of course have been bubbling around in the courts of appeals in particular for quite some time the contours of the implied false certification which of course the government came in and argued in rows as well and then you know there is a debate about sort of the exact materiality standard and the government has been arguing you know for you know they've been sort of emphasizing the kind of essence of the bargain standard in some other courts i would argue that even that is not satisfied here because the government because the agencies accepted the except at the censor but you know that i think was where they were principally concerned about the legal issues you know i think the government has had the opportunity to intervene they've decided not to they did this is not a case where the government sort of did a cursory look at the case and said now will you know we'll let you you know go do your best this is a case where the government spend years you know a very thorough investigation can hardly draw anything because if you look at the litigation often the government takes years which makes the relator is crazy because they they either say yes or no i want to get going with it i understand that i'm not even sure we can draw anything other then and then they often decide not to intervene for resource or other reasons which can draw anything from that and they often my experience in looking at these cases and reading government submissions is they kind of like to have their cake and eat it too they want to keep their hand in it but they don't want to do it so i don't know i think it's kind of a wash here like knowledge knowledge all that i think the point that i was hoping to make was that if there is a paradox case where the government had all the information about the violations but nonetheless you know continue to pay this would seem to be yet because they did you know they did a thorough investigation i mean this is not it's this is not like cases like  know to some extent like campion and then rose where there was kind of real doubt about what the government knew at the time and didn't really have enough information and there were questions about sort of well maybe the contractor had actually come into compliance and the government decided no it's not you know it's not worth going after here the government had sort of the whole suite of information and it seems to me it's got to be you know the burden on mr mint has to be to explain some other reason why it would why it would be material thank you  with respect to the question of the government continuing payment the government has filed statements of interest in this case saying that there are reasons why the government may and the defense contractor raytheon and they said that here in statements of interest that are filed and referred to in our brief they said that this case this this project the what the the you have to remember your honor that that the new post project was cancelled by the government and then they went on to a no other project which is called the j p s s and it is correct that malefactor or a person who has given false claims that we find material to us but there at the savannah river case which is the standard they cite  says there there may be reasons why we don't want to reinvent the wheel it may be and we've had no discovery in this case so we don't really know it may be conjectured that look ra