drawing inferences against the appellant the nonmoving party in this case the runner there are several issues here so i'm going to take them in the order of scientists or interiority and then the employment claim first of all your honor the court erred in its application of the standard santer under the false claims act as kind of like reckless driving you can't just say oops i didn't know that the speed limit was eighty five you were held to no the speed limit is that's deliberate ignorance of the law one of the ways you get to either knew the figure was false or acted with reckless disregard of its truth or falsity here the defendant testified that it was trained and was competent in medicare law's jamie baker the person in charge of the medicare billing testified today that due to the color of the corporate as he testified that he dealt delegated that responsibility to the defendant also testified that it knowingly placed the referring provider as the rendering provider over three thousand times on claims there's no question that the claims in this case for false issues in dispute both experts defense experts experts and plaintiff's expert testified that the law is clear in this case it's easy to understand and providers are held to know the defendant can't simply say is it seems to be saying here hoops i thought the rendering and referring provider were the same thing that's deliberate ignorance of the law the defendants can also say oops well there was somebody on site and i'll get to who is on site when i discuss materiality but they can't just say it was somebody on site we just don't know who it was because we didn't do it correctly that would be reckless medicare cares who is the rendering provider that's why the rules require it and that's why it asks who it is the best evidence of this and there's i contend there's lots of evidence in the record on the issue of santa at least that would require a trial plaintiff's expert testified in answer to the question do you believe they can or medical group should have known to put the correct rendering provider in box twenty four j our expert testified everybody has to know should know i mean it's again like you know we all need to know our traffic laws and you know we get older we forget our new laws are passed we didn't read the newspaper we're not allowed to talk on our cell phones in the car never bother to read it so you don't know but you know that doesn't mean a cop can pull us over for talking under cellphone because that's the law and these are the laws the rules and everyone is expected to know what she's talking about medicare everyone is expected to follow medicare has the best transparency of all payers in terms of the rules they're very clear i want a b c indy and they make it clear in the med learn area which is the on my website and there's other evidence that defendant knew what the rules were and simply failed to refuse to follow defending argues that its conduct in this case was negligence and i off the wrong form but essentially these people were doing the service and these people were entitled to the care that they were getting our work their actual product going on or just to a technical glitch in the form the answer  unnecessary but there's really two instances of fraud here first of all and this gets into really as a question materiality not santer but i want to just the question of fraud fraud intent to defraud is not required that to defraud is simply not required what's required is that the defendant acted recklessly or negligent as to your question your honor there are two ways in which the defendant committed we say false claims here or if it actually using fraud first of all the defendant on numerous occasions build a physicians assistant or an m p as a doctor and that's important because in that case the united states paid fifteen percent more than it should have so in that case and in all of those cases and all of the defense witnesses testified that at least in some instances there was a physician's assistant or a nurse practitioner on site that actually that was listed wrongly as the rendering provider a doctor was listed instead of the p a or the n p and in that case it is fraud because the government paid more than a share second of all we contend your honor that listing the wrong rendering provider is fraud because if there is a problem there's a knock the medical negligence or something issue with the way the service is treated medicare has no way of knowing who actually rendered the service and we contend that's material both defendants expert and plaintiffs expert testified that both issues would be material that they are important and that the government cares about them and the standard  materiality runner is is low first of all your honor i had the pleasure of reading the statute again on the plane and if you read it closely you will see that section a one a does not actually require materiality so this case hinges on false claims not false certifications which is a would be a would be specifically uses the word that the claims that the false certifications must be material and defines material it would be does not have that requirement it is nowhere in the statute we contend that congress did that intentionally required is the submission of a false or fraudulent claim and fraudulent claim without any requirement of material but if there is a requirement of materiality that standard is low this simply capable of influencing as this court held in a along of his there was no actual damage to the government the government got the product it asked for the product met all the standards that the government required all that happened is that the product was was falsely induced in the first place and the court held all that is required under the test for materiality therefore is that the false or fraudulent statements have the potential to influence the government's decision we argue that is the case here for two reasons first there was money issue and it is u s taxpayer money jamie baker again who was the medicare bill or all testified that at least on some occasions the person who rented the service was a p a or m p and i'm citing in the record of two ninety three i asked jimmy baker sometimes the referring provider was an r n right  she said in our in question a question a nurse practitioner answer a nurse practitioner yes ok now sometimes am i correct that sometimes a supervisor provider on site in bedford is a p a physician's assistant or a nurse practitioner that's correct so at a minimum there are issues of fact as to whether or not and to what extent a physician's assistant or nurse practitioner rendered the service in which case the government would have paid fifteen percent less even assuming that the services was perform correctly secondly as as i just mentioned approach the c m s does care who the provider is that rendered render the service both experts testify to that and the direct question is this is a question to our expert so it's your opinion that even if the group practice ultimately bills on the claims and receives all the money for the claims medicare really cares but there was a discrepancy in the identification of the ordering physician as the supervising physician answer yes the point is there was a question of fact on that issue that the judge literally do the facts against the appellate in his fa recently attempt to address the employment claims there are really two issues in the employment claims first the court held that the pellets memorandum on june eighteenth two thousand and twelve was not protected conduct standard or protected conduct the simply notice this court sorry the southern district of texas held in us extra georgia versus boston scientific the following an employer does not need to know that the employee has filed or is even contemplating  use magic words like illegal or lawful to put the employer on notice of the employer's protected activity that's the question the question is did the defendant have noticed that the plaintiff was protesting illegality in a government program and there's simply no question about that in this case the defendant stated in her member one week before she was fired i'm sure we know it's all against the law to bill medicaid patients she actually did use the magic words even though she was not required to she's clearly putting her employer on notice what and you know that the defendants have thrown in what we think is a red herring that we properly amended the complaint as the evidence developed in the case that's the right thing to do the diff the appellant protested all along that things were not being done correctly that the services were not being rendered correctly she didn't know the exact legal standard that applied to that and she did not put that in writing which she did put in writing was this issue of co pays and defend in effect the knowledge is that judith cutler who is the c e o and was a corporate representative when asked what did you understand this johnson to mean when she sent you this e mail and her answer is exactly what it said and i said which is what which is what and she said that we were that she was interpreted that we were doing something that was not quite right she didn't say that we were doing something illegal but that's about as close as you can get to an employer acknowledging that she knew that the that her employee who she fired one week later was protesting that something was wrong something was illegal and a minimum happy to cite it she even disputes the dates of the counseling themselves two of the counseling notices are dated by the appellant asari dated by the defendant on a sunday and the date appellants testimony is that she wasn't there on that sunday show she could not assign them she didn't know they existed she only saw she only even became aware of them on the data for terminations this is an issue a pretext we argue that these memos are pretext that the defendant argues their causation that's a question of fact that's exactly the kind of thing that that is a question of fact  paid twice once by medicaid medicare and and now by me and i need to get my money back yes yes you are they the evidence in the record is from miss baker that she was aware that they were co pay sitting on the record on the on the bill the books for as many as much as four or five years i don't know that she said we'll wait until we get called but that was their actual practice was for them to wait until they got called and that is exactly what ms johnson was saying was illegal thank may please the court courts have consistently said the false claims act is not intended to be general or force a mechanism for federal law but that is the effect of ms johnson's arguments as to each of her claims here the m requires acting with guilty knowledge of a purpose to cheat the government here we have a mere clerical error nothing suggests that can or knew that it was putting the wrong information into two boxes on the claims form or even suggested or even suspected that there was something wrong secondly with regard to retaliation claims yes c a a does not provide protection for individuals who make general claims of unlawful conduct instead the necessary prerequisite for an f c a retaliation claim is an accusation that the employer is bilking the government and here ms johnson says you're improperly billing patients not your improperly billing the government there's no false claims act liability or anything with regard to other individuals  collects one hundred dollars of it from the patient and then deal with government for two hundred dollars isn't that government being over again two responses your honor not necessarily if the situation is theirs it's unclear as to whether or not the individual has medicare or medicaid coverage at the time because the change at the special the medicaid coverage changes with some frequency such that if you would bill the client for it or bill the patient for it hold onto the money and then after receiving the reimbursement from the government refund the money then you know that second that's not what she was complaining of here she specifically was complaining about billing medicare medicaid patients for services that aren't covered by the federal programs and other words they were services that that once medicare medicaid cover services the patient one of them the patient received them in the patient was responsible for paying for them not medicare medicaid that's specifically what she says in a sentence and mealy perceiving the sentence that talks about we all know that bill that that this is on lawful or that issue this is against the law going back i like to if i may signs and he's absolutely wrong and this is why he's wrong the speed laws of the various states and traffic signs are strict liability laws the state doesn't care what your intention was if you violate the speed limit you're liable that's not the false claims act congress specifically said you must demonstrate that a party knowingly submitted false claims that's what distinguishes this from the speed limits here they're trying to impose strict liability which is exact with a false claim that doesn't do they are saying that in sub regulatory guidance on a single page  single sentence on that page out of the thirty seven thousand documents maintained by c n n the house says you put the supervising physicians name in the rendering provider box on the for and my client should have been aware of that i he was negligent if it wasn't aware of that and consequently that ought to be false claims act liability that's not what the false claims act imposes treble damages for the false claims imposes troubled images for knowingly submitting false claims of the government for knowingly trying to get money which it was not entitled to and there's no evidence of that here how do you not disputing that they could get fifteen percent more if you're on a what if it looked like a doctor but before i get to that i do dispute that but i want to be clear even if my client did even if there was an issue of materiality without seeing enter summary judgment was proper in this case and the district court's judgment should be affirmed returning to the question of materiality the issue  first of all this there was a suggestion made by friends that there are many cases in the record that show that we violated the eighty five fifteen rule i would challenge my friends to identify a single claim that was submitted to the government that violated the five fifteen rule he didn't do it in the district court and with out any evidence of an actual false claim submitted to the government i don't know how we could go to trial this is the false claims act you have to submit a false claim and to date ms johnson has never been able to identify a material false claim what she has been able to identify is claims that have the wrong provider listed in the inbox twenty four j that's on its own not material if proper supervision was rendered and there's no question here that there was proper supervision the only testimony to suggest that there was that there was that the government would consider this to be material was a statement by ms johnson's expert who never worked for the government who doesn't now work for the government the statement of an expert on it's own that a fact is so does not make it so and does not create a genuine issue of material fact or summary judgment for good reason otherwise summary judgment we will line impossible to get any sort of complicated case but look what evidence isn't here there's no evidence of past history by the by the government how they treated these claims there's no evidence of enforcement actions by i see a mouse there's no evidence from anyone representing the government in this case as to opposing counsel is correct materiality is listed in the second one but not the first provision however every court in this country has uniformly adopted a rule that says for it to the definition a false claim includes materiality and for this court i would regard to the testimony as to who was present there is no evidence in the record we submitted the record is clear that the evidence is that one hundred percent of the time there was a physician on site so that  mistake was immaterial but even if you were to say well that seems to be i guess as my friend suggest that seems to be less than clear what is clear is there is no testimony that says there was ever a situation where be specifically activity that opposes built in the federal government not some sort of violation of federal law not in error in billing with regard to a federal program but specifically it has to be a factual matter that's not true it's not it was an accurate complaint that's one of the reasons you don't see the case now but as a legal matter it's not sufficient to be protected activity under the statute my friend suggested that there was evidence that she could have some notice that we're not building the government correctly that's not true the evidence the only thing that they cited to that would put us on the us put my client on notice as to what was was that an e mail from the middle of june two thousand and twelve and it specifically deals with billing patients not the government unless the court has further questions i would ask the court firm the district court's decision thank you during that entire time period the defendant's listed him as the rendering provider he was not only not in another office he was out on medical leave so he could not possibly have been the rendering provider so there are numerous examples in addition of the parties were preparing for trial and the appellant prepared a spreadsheet which identified all the false claims and provided them to defend its defendant refused to accept that but certainly there and if we were to go to trial in this case we actually have all three thousand three hundred some odd cl all of which are false we also have the schedules of all the providers and what we will do to prove this a trial is we will match up those claims with the schedules and identify each and every instance where the rendering provider was not the referring provider and each and every instance where that rendering provider was a p a a or an n p where the it but and not a doctor as was listed on the claim and that's how we would come up with the actual calculation damages in this case but there's plenty of evidence on the record that would m trial in this case very briefly on the issues of scienter i know the defendant vigorously argues for negligence and we vigorously argue for recklessness and i simply contend that first of all that the defendants acted with reckless indifference or acted knowingly they actually knew what they were doing they knew what they were putting in the box it says rendering provider they testified we put the referral provider there and then minimum they deliberately ignored what the law says and finally these are clearly issues of fact that if viewed in the light most favorably for the defendant would merit a trial is to the guilty knowledge standard we can tell your honor that one case in two thousand and eight is simply wrong and there's an opportunity for this court to correct the bolger case in two thousand and fourteen already did the fear amendments already did every single court in this country has held that intent to defraud is not the standard that the standard is exactly what the statute says almost a little deliberate indifference or reckless sorry deliberate big difference or reckless no reason should we be holding a medicare and medicaid patient refund this is a claim or protestation of what she thought was fraud or unlawful conduct for two reasons first as your honor pointed out this could result in an overpayment in other words the government paid more money that it should have because because of the collection the co pay second of all this isn't in issue of defrauding patients medicare care is not only that it pays the correct amount but that it's patients do as well that  it that the people who are using the medicare system are not also defrauded so what mr johnson is saying here is to potential things are happening one medicare is paying too much to our customers are paying too much and our customers are customers of medicare and that's