contraceptives purchased into the three forty b program could not have given him foresman authorities and the other forty nine states you know for information to justify investigating over one hundred independent planned parenthood corporations also link couldn't have given them cause to ninety under medicaid enforcement resides in the states each state is required to set of medicaid fraud control unit therefore if you're a discerning attorney general or in the attorney general's office and you read the consults complain about about says you look at the allegations at the granular level so if for example a u s attorney say in new hampshire or alaska or someplace were looking at these allegations all they would know is that some that was under the medicaid under the medicaid laws well i'm still i'm just i'm still puzzled by your statement that that would not have given somebody else yeah cause to investigate i believe that's your term yes i'm sorry i don't mean to be so oblique there are three reasons number one the three elements to what the plaintiff in that case alleged the defendant was different obviously the fraud is different meaning that in gonzalez you only had the three forty b scheme alleged whereas in plato you have both the three forty being the oral contraceptive scheme and third and probably most importantly the laws relating to the two were totally different each of the fifty states under medicaid establishes its own the patients to the program and then every quarter reports on the number of patients and then there is a rate there's a yeah they they settle out basically either they cover but i'm going to tell a foreigner in washington that similar statement and by making that statement he had all the intended to convey was once again at the highest level he was saying this is the same kind of scheme no that's not what he said that this fraud is exactly the same as the fraud being charged in  right but that's not according to the ninth circuit precedent what you look at what you look at i just think the raytheon case is just quite different from from well from this case it isn't it isn't three the reason that the defense contractor cases tend to in some cases lead to an industry scheme result is that in some cases you have a similarity in the defendant like in the boron case and some why we talk about the authorities enforcement authorities in one state like alaska or new hampshire looking at the consolidate complain in california and saying well we have to go after our planned parenthoods you're talking about a very serious thing you're talking about unleashing enforcement authorities to investigate to question that's all a very it's a very heavy thing and they are limited in their resources and cons consequently i don't think that it gives them enough just to know that the consolidated complaint allege that a handful of california plan period of corporations that would be like on the basis of those nine california planned parenthood's immunizing all one  those before filing the action the whistleblower must voluntarily inform the government of the facts with on which underlined allegations of his complaint which he did that's not at issue here and he must have direct an independent knowledge of the allegations underlying his complaint now this statu was amended in two thousand and ten and as i pointed out of my twenty eight j letter there is a case before this court set for the ninth circuit on the i believe it's a september san francisco set called prater which raises directly the question of do you apply the pre to any ten of the post twenty ten amendments we believe the better reasoning is to apply this retroactively before two thousand and ten happy to make an argument on that for you if you'd like to tell me about the pre twenty yes we believe that he had direct an independent knowledge of the allegations underlying his complaint because he did quite a bit of his own labor to develop this claim in fact much more than any of the other similar cases rex and independent knowledge like the leaseholders in the comstock case and the tenth circuit he obtained and it reviewed extensive voting records from state medicaid officials you conducted interviews of state medica officials to discern what the reimbursement rules required he interviewed the defendant's head of development in writing to confirm that planned parenthood was in fact billing at market value rather than acquisition cost and utilize the billing records and other information obtained to calculate the total number of claims involving the amount of fraudulent overbuilding that's what he did that is significant amount of his own labor under the president the closest case that the other side has is the case involving  but in blevins they were handed the fraud allegations by an insider right that the dossier was given to them and all they did was verified by interviewing a few members of the fraud circle and confirming what the he had already been handed them in a dos year so in this case mr plato did much more than that he did all the things that i mentioned he worked very hard he in fact he was working on this theory he the strongest authority supporting your position on that public disclosure i think your honor we think that the ten eleven circuits position in cooper versus blue cross obviously there the person was not an insider was simply a person over the age of sixty five working and knew what the right rule for application was between the medicare program and blue cross blue shield of florida and that they were considered to be a proper relator in that case hooper the court said we consider it to be crucial whether blue cross was mentioned by name or otherwise specifically identified in public disclosures ok if you go by that rule the ninth circuit should also hold morning matthew i'm home from behalf of planned parenthood of the great northwest and may please the court there are really only two documents the court needs to look at to confirm that the district court got it right here the first is in supplemental excerpts of record twenty five that's the blog post written by mr played out back in two thousand and nine where he said that the gonzales case was exactly the same as what was going on here in washington exactly the same so when the question on the public disclosure issue is whether the prior public disclosure was substantially similar mr played as conceded exactly the same far above just substantially similar so the second document is supplemental excerpt excerpts of record one fifty eight now that is a document in which that relates to the original source question mr played out described in his rule twenty six disclosures before the district court exactly what he did that makes him there in exactly how we learned because that the question on the original source is how does he learn the knowledge and he said i got public records i reviewed public records not exactly direct an independent knowledge i reviewed records i got from the state of washington pursuant to a public records act request again it's she's just reviewing publicly disclosed documents at this point and then he says i talked to two people at the state of washington and planned parenthood when you look at devon and devon requires first hand unmediated labor by anything else what mr blake has conceded was all he did to us obtain this knowledge in this case falls far short because it was secondhand it was through public disclosures like the  conceded in two thousand and nine two years before he filed this case he knew about it so those are the only two documents you really need to look at because they both of those established statements by mr played on self that establish that he can't bear his burden here and he does bear the burden he bears the burden of showing there was no prior public disclosure and he bears the burden of showing that there that he was an original source when we turn to the public disclosure issue and we ask we ask the question of was the also case and the oh i g report anough to publicly disclose was it substantially similar it's the cases are quite clear on this issue and the test i think just by being correct my test is a very different case the cases that are on point are all can find versus india and finley and all can this court was looking at the issue of local electrical contractors who had inappropriately build on federal contracts and all can this court held that even though the prior public disclosure hadn't named the specific local contractor that was issue in all can it had done enough and the reason why i'd done enough was because it set forth a narrow class of did wrong doers and that narrow class of suspected wrongdoers was defined by this court as all local sub contractors who are electrical and building for years you can imagine that's far the report i think the report was enough to publicly disclose here but there's no question that the guns all escaped plus the report did and here's why the first thing it did was it identified specifically the kinds of covered entities and mentioned family planning clinics now case did that and there's no suggestion that it was another there's another document in the court record that i point the court to it was a and i apologize for not having the excerpt of record in mind but the drug discount monitor is a publication that goes  out around these issues and it's the civically connected the gonzalez case to the o a g report and so it's never been disputed and it's really quite clear and i think we just heard a concession of that today and so to get back to your question just as if you look at the white you report talks about family planning clinics says that there are twenty five states that have rules requiring at a cost for three forty drugs and then it gives a list of those states and one of those states is washington and so the idea report actually gets pretty darn specific all you got to do is look at three forty billing in the state of washington which has both a statute and a policy according to the report it's in the appendix so the report i think does what all that needs to be done here but at excerpts of record three seventy seven it's very clear on this point they can solve this case if this is an attachment to the consults case it's an audit letter written by california which started the whole gonzales thing and it specifically refers to both world contraceptives and emergency contraceptives as being overbilled in california so in california gonzales says planned parenthood gets its drugs cheap under three forty b it sells them at its usual and customary and regulations say they shouldn't do that that's exactly what mr plato says here planned parenthood gets its drugs cheap under three forty b it builds them it's usually customary the words usually customary appear in both comes all this and in this case and there are regulations that say it can't do it and plus the report so then you get to the second question if there is a public disclosure and there was why can he prove and he's got the burden by a preponderance of the evidence to prove that he was an original source and he had direct and independent knowledge so there's two pieces that have that all start with independent because i think it's an important one the district court didn't spend much time on it you're independent if you know about the fraud before the public disclosures so the burden of proving by a preponderance of the evidence that he knew about the fraud before consults came out and what he points to there is an e mail exchange that he was having with planned parenthood official there's no place in that e mail exchange before march fifth two thousand and eight which is when gonzales became public where he alleges a fraud he's poking around because he's got planned parenthood of the great northwest tax records and those tax records have a reference to profit so he's poking around to try to figure out where does this profit come from but there's actually an exchange on march fifth two thousand and eight in that e mail and there's still no suggestion that there's a fraud or that it violates any rule solve this case in which was unsealed in march of two thousand and eight that led mr played out to conclude that this was a fraud this is problem just one of timing or were his actions would his actions have been sufficient if he had  sufficient i absolutely not and the reason why they warn and i think if a court looks at there's a there's a series of cases on the issue of independent investigation which is really what we have here we have a suggestion that mr  plato did his own work and probably the best case on this is a fifth circuit case called reagan and it is cited in the breeze even when the investigation is extensive the complaining the report put all the material elements out in the public mr played out could have spent every day for ten years putting that together and compiling that but it was already in the public sphere devlin was another case and i actually learned from an insider what was going on here mr played out learn from an insider mr gonzales what was going on and then he proceeded in devlin they proceeded to do their own investigation to confirm internally what was guess that was a rhetorical question because we know the answer to that but where do you draw the line well or did he fall short i certainly draw the line short of where mr mr played out was in this case i draw the line at where reagan did which is if all the you can do is much investigation and compilation as you want but if all you're doing is rearranging what's already out in the public sphere or pulling together what's already out in the public sphere which is what he did then you're not doing enough to become an original source and again he has the burden here so i don't even have to prove anything in terms of an absence of effort mr plato actually has to prove this by a preponderance of the evidence and i think the district court got it right here when the district court concluded that he hadn't borne his burden so at the end of the day this court has talked about the notion of a whistle blower sounds the alarm he doesn't echo it what's schindler has held that they don't apply retroactively and this conduct clearly happened the four of the march two thousand and ten amendments came into effect and so we don't need to look at the post two thousand and ten i argued that we could we even under the post you it's a time for rebuttal but you know very briefly the blog post as i mentioned was actually at the highest level talking to laypeople about a lace subject and saying that this is the kind of the kind of fraud that fraud and inst in spite of i'm a strong office reference to devil and evan does not help me because in devon the fraud was disclosed the dossier was handed to the plaintiffs in this case mr cutler did not admit any kind of fraud he simply admitted that they were billing at akron's at market value which is the essence of the fraud so he took that and he added the billing records he added the billing requirement put the x times y equals the finally this is not a narrow class as in the alaska union case or the sandia labs case in those cases there were a handful america against allegations of billing fraud because of what mr plato said so if the court has any further questions then thank you very much thank you very much