good morning you may please the court my name is gabriel hawkins i represent we later in this appeal and relator asked that this court vacate the district court's entry of summary judgment because floor had a contractual obligation to employ only license electrician in furtherance of a journeyman electrical work under task order five in florida not only fail to impose its contract three chosen means of satisfying this basic safety obligation  there is really the e mail that gave rise to this full dispute so to speak your honor in that e mail relator notifies floor and the government that he's at based in k c and this whole entire base doesn't have a single license journeyman on base it has a single journeyman who does not possess a license and by definition if the whole base does not have a single license journeyman it's and what's the significance of that targets the media my understanding is flash reports is when electricity is parking so to speak and you can see the arc from the electricity and that requires the electrician to properly bound and ground the incident causing to report the significance of that is that's clearly electrical work as defined by section two point three of the governing trade certification the validation  sent your question on ok thank you but in addition to the two items of evidence that i just mentioned your honor i would also point out to the evidence of of cour supervisors destroying work orders performed by o c and electricians before you go into that if a country require license not directly but indirectly the contract required floor to opt between one or more of four options license being one of the options the other three options   means of ensuring that their employees are qualified it's entirely permissive there's no lock in of a particular method under either the cut the base contract itself or this court that floor was not required to specifically impose the license requirement they could have opted for any of the four i don't think there's any dispute or at least not to my understanding as to why is that doesn't require a global selection it just it leaves it entirely permissive to the contractor to have as to how to qualify its people it requires a selection of one of the four or maybe maybe even one any of the four refuse any of the four at any of the locations doesn't require an exclusive there was a breach of contract here yes the restaurant there was a breach of contract yes by employing unlicensed electricians and by employing electricians who didn't satisfy any of the four listed means under the contract does not require since i mean that's a sort of a circular argument that i'm making but i don't believe so your honor i believe the contract requires one of the four listed means floor elected license as  and didn't impose any there's no evidence or even an allegation that i didn't post any of the other three listed means if this were a case where floor opted for the licensure requirement and it turns out that they were using to grease forced some other we wouldn't be here right now i would agree that that would not it certainly wouldn't be a material breach of the contract but one floor opted for the license election and then didn't impose any of the other that was necessarily dispensing all together with the baseline requirement to qualify electricians and i think it goes even further than that your honor because once the floor by its admission imposed this license your requirement it made all non licensed electricians helpers helpers by definition are not permitted to perform journeyman let electrical work that is electrical work without supervision so even if the corps concludes ok a license it could impose other means of qualifying electrician's even if the court concludes that it did which there's no evidence that it did floor would still be in breach of the contract because once it designated all non license individuals as helpers by definition those individuals were not permitted to perform the journeymen elect now of course  read the government contracts it that's correct your honor in normally i would say that would be perhaps even fatal to at least the opening salvo of a false claims act allegation however i would point out i point the court  specifically informed by floor of this license your requirement and his next death he didn't go off and file a suit he didn't go off and retain an attorney his next step was to approach a supervisor and say this isn't right the floor is reaching the sky this obligation and for supervisor indicated that it agreed with three later but it was out of his hands so did he send the e mails to his supervisor that governments client blower website all at the same time there were two sets of emails the first e mail was not sent to the whistleblower website the first e mail was sent just to the to the government and supervisors the second email he see see i believe an attorney and the whistleblower website which is referred to as miss markham your hon again in addition to the fact that floor doesn't even allege that it imposed any of the alley get any of the qualification requirements listed under its trade certification and validation program other than a license your requirement crucially important is the contracts indication that journeymen are individuals to make work without supervision whereas health fairs are individuals who may work with require supervision before doing that work your only theory of teaching the district court as i understand it was this interpretation of the contract that requires licensure is that this argument that you're making now that it's the sort of even if argument is new on appeal so far as i can by definition the contract would not permit helpers to do this work in an unsupervised means and that's where i believe a preserve this argument that i wrote them raising now and then i raise before in the briefing before the well the district court apparently didn't consider it preserved because there isn't any discussion of it it's the district judge fred your argument is exclusively resting on this idea that once the company decided to impose a licen requirement any other means of qualifying its personnel or for clothes that there were some sort of exclusivity for klamath and that's just not in the contract language and so the court said there was no breach i would certainly agree that the district court did not even discuss the import of helper and obviously it's either in my preferred not in the court will make that decision the question is why there was adequately developed as an alternative theory of brief so that we can reach it independently even though the district court did not and i don't see it as adequately developed  you've done and more robust job in the district court but i don't much care that's enough i must tell you that i'm right there with my sister you know that this sort of a collection of sentences that hinder the theory but i don't see it spelled out we're talking about the able to turn it of contract yes i certainly it that you never called it by that name you never preset i that was not included below however the argument is exactly the same as i can fact i even quoted in my brief that the argument is that floor should opted for the licensure requirements did not impose any of the other listed means of fulfilling that requirement that was the specific argument raised below the only difference in my peel but peloponnese is that i managed to find cases to stay and for that proposition my understanding of the waiver rule employed by deal with mutually exclusive choices under contract i find it difficult to find out that's what we have in fact i think that's absolutely right around to the cases do deal with mutually exclusive choices i think the principles the same and that principle is the contracts can afford a contractor discretion in deciding how they implemented contract but once the contract opts for that discretion they have to perform equally important again we're not talking about a situation where floor even alleges that it's imposing any of the other that would be a much harder case that would be a problem wouldn't be here right now but the fact of the matter is floor doesn't even make the allegation term it's defined specifically under section two point three of the contract and that is the use that we later is referring to when it refers to electrical work there are specific tasks that are spelled out under the contract that says this is what electrical work is and that is what it consists of it's an open and final point or says this is my interpretation of the contract this is something new this is something that's not been raised before i respectfully contend that it's not good leaders can trip or titian of the contract your hon the contract there is deposition testimony where manager by the name of ray no ifs amidst that from the beginning of the contract it was his understanding that the court that really the floor had this licensure requirement for license unlicensed helper but that's this i think there's two questions there and i'd like to answer them both it would both email suggest is the electricians would be quote unquote qualified without this licensure requirement and they needed this interest requirement to be qualified and that's the crucial term under the contract there are a second question is is there any role for these non licensed attorneys and that it then cers absolutely there in that role is specifically spelled out by the contract their helpers they work under the supervision of journeyman electrician's for foreman's not without it thank you morning your honor is made please the court first i'd like to correct something i believe that mr hawkins said flash reports had nothing to do with our king or flashing flash reports or simply priority repairs that need to be made and by the way although mr hawking said in his e mail that he was told he would be fixing flash reports it made it his deposition that he doesn't recall whether he was in fact assigned to do that so whether in fact he fixed any pleasure or it's there's no evidence to support that at a time when he had been demoted to a i can't to start a lot of finite because the supreme court's ruling in universal health services came out after you found your response brief and i imagine you would want to respond to the plaintiffs so i can i do your honor and although i believe that the dispositive issue in this case is whether there was a breach of contract and as this is a district court held there was no breach of contract here and without a breach of contract there could be no misrepresentation of compliance with the contract but assuming for the sake of argument that there was a pita from tracks that could give rise to  misrepresentation of the court's fundamental holding in universal health was that it's up to the plaintiff the relator in this case to show me teary ality to show that the f c a liability can attach as the court said if the contractor knows the contractual requirement is material to the government's decision to pay and the court emphasized that the materiality requirement is both rigorous and demanding the court in fact rejected the first circuits formulation which was a much lower standard that said this representation was material if it merely gave the government the legal right not to pay the court held that the plaintiffs had the burden of coming forward with evidence that shows the government electrical workers were not licensed and by the way most of them were journeymen you'll have offered no testimony from any government witnesses about what the government regarded as material and he provided no other evidence showing that the government had a policy of refusing to pay invoices in similar situations on the other hand the evidence showed that there was an utter lack of materiality on several grounds the government didn't see spain or dock floors in voices after the army officers on the ground in afghanistan investigate you'll exclaim when fluor asked them about it and by the way fluor asking him about you explain is hardly the sort of behavior you would expect from someone who is committing fraud the government didn't c uli filed his lawsuit shortly shortly after he was terminated so this case is quite similar to the united states sex role marshall b woodward in which this court held that misrepresentations were not material because the government kept ordering the helicopter parts after investigating the would later claim that they were defective similarly in the united states honestly black and beach the tenth circuit found a lack of materiality when the government the universal health services case would turn simple contract reaches into false claims virtually always well that's certainly the danger here and that's why universal health that's specifically why justice thomas emphasized the materiality aspect of it is to avoid simply saying every breach of contract is material you have to show some evidence that the government would have cared another reason why the government why there's no evidence the government wouldn't have or there's no evidence the government would have cared here is the scale issue you know this court said in the absolute case that it's important to know how many violations there were in the scale of things ulick has shown no specific number how many times let's assume for the sake of argument that on some occasions a helper did do something without supervision that was a  journeyman's obligation if that happened once or twice or even one hundred times out of the tens of thousands of times that electrical work was being done on this bast project in afghanistan i think the absolute court would say there's no showing the government would have regarded that as a material reason not to pay the invoices mistakes will happen and mistakes do happen and in a large in a war zone where you have a large a spy without group of employees doing things so that's another reason why there's no evidence of materiality here and that's a protection against turning this into simply a breach of contract case and finally of course the government didn't intervene in this case below and has not even brief in this court and in the lucky case this court expressly pointed to the evidence of it as evidence of non materiality to the fact that the government had declined the prop to prosecute the leaders claim on its own or to adopt the re position of the the universal health court also talked about scienter again another issue scienter doesn't factor into breach of contract cases but it does factor into fraud case and as to scienter you know fluor had no reason to think that licensure was material to the government's decision to pay it was or indeed that the contracts in the contract south the base contract and then this plan that was filed about quality assurance and the context suggests that flexibility less primary this is a multinational work force as i understand it as you pointed out in a war zone in afghanistan and the government requires the use of locals on this work force as well and sell it seems to me that what was material was that there be flexibility on the part of the contractor to assure quality in any one of these variety of ways but that's exactly right your honor i couldn't agree more and that's exactly what the what the situation was and by the way mr hawkins emphasized several times that we haven't alleged that flew or used any of the other methods of qualification for for the  unlicensed people well it was not our obligation to allege that it was his obligation to show that and he didn't show that what he showed was a few isolated instances where either mr you league or some friends of his reported that they thought they saw people doing work that they thought they shouldn't have been doing now that you you you you you did i think concede that he didn't have that media access to the government contract but did he have any access to the country no your honor it would not be the normal course of things for any employee to have access to the government contract but while he didn't have access to the government contract he also did not have a need to you know make his complaint right away if he were if he thought there was a false claims act violation he could have seen a lawyer he could have had it evaluated he could have done further investigation you know as as it stands and this really relates to the retaliation claim more than anything else he had no proper basis no factual basis for alleging that there was a false claims act by lation in fact he didn't allege there was a false claims act want to respond to that well it's certainly possible that on occasion as i said in this situation a helper performed a task that should have been either performed by a journeyman or and this is another aspect that mr hawkins completely ignores what it says is that helpers can work under the supervision of a journey and there is no hell a geisha at any of this work was not done under the supervision of a journeyman who could come by and check the work or watch it while it was being done and get instruction the whole point of the helpers which which is another name for apprentices in this situation is to teach people how to do the work so in that sense the allegations i think  that helpers were doing certain types of work doesn't really advance the ball because number one if it happened there's no evidence that it happened on any material scale and number two there's no evidence that it wasn't supervised something and there's no evidence that any by the way there's no evidence of any actual false or because all of these work orders that are the basis of of the claim were truthful they were scientists they describe that was done and they were signed by the people who actually performed the work so there was no attempt other than some isolated instances which which mr ulick has dug up of people who claimed that on a few occasions some low level supervisor told him to change work orders there's no evidence that that was floors policy there's no evidence that anyone responsible for submitting floors invoices even knew about that you know things do happen that doesn't make it floors policy you know this case on some level really is about who can change a light pole because below mr ulick submitted a bunch of work orders that he claimed were evidence of his fraud in the record from the district court of pages one  one to one i want to there's one of the work orders that mr yoo legal edges is the basis for breach of contract and it's a work order in which the problem was burned out light pole and it's a polite order of work order in which the fix was put in a new fluorescent to mr ulick claims that because the person who did that didn't have a license that violated the contract and that makes no sense you know there's there's no readily contractual obligations to employ licensed electricians ulick does not have a claim to begin with that was a statement from his brief in the district court and the district court correctly held that usually did not have a claim to begin with because  fluor did not have a contractual obligation to employ licensed electricians that's not what the contract says now there was evidence as mr hawkins points out that some fluor employees  said something different about what they thought the contract meant but as this court well knows the meaning of a contract is a matter of law to be determined by the contractual language and it's not unusual in any organisation in a long and complicated contract that people after the contract is executed will have opinions about what the contract means that can't change what the contract means the contract says what it says and the fact that some employees who might have been ill informed or who might have had their own opinions said something different and by the way the testimony on that was rather being conclusive because people said one thing people said another thing and that's not unusual if you're reading a contract you'll form your own opinion that doesn't change what the think it's important because it's clear that mr ulick sent these e mails and it's clear he was terminated shortly thereafter but this court has made it clear that trying to establish a retaliation claim a  an employee has to pass both an object of test them a subjective test the object of test being whether a reasonable employee in the same position could have thought there was a false claims act by elation and the subjective test was whether the employee himself believed in good faith that there was a false claims act violations district court didn't reach the subjective test because it held that you would fail the object of test at the time he was fired he didn't know what the contract required and if he had retaliation statute cover situations in which litigation could be filed legitimately that is consistent with rule eleven here ulick had no objective basis for a claim that would have passed ruhle then finally i guess what he thinks he had is that some of who are as employees thought that the contract because others did it would not be objective leon reasonable for him to have that's the very same belief i think well this court in lange you know pointed out that you know what people around the office say is going on is not an objective basis without doing some investigation on your own number one and number two the evidence that he points to is really sort of inconclusive you know he points to an e mail in which floor says to better align our positions with contractual obligations we're going to make these changes it doesn't say we were out of compliance to begin with it says to better align our practices with contractual obligations and he points as mr hawkins said to a statement made to him by a human relations a person after he first watched his complaint and his complaint was and his complaint as specifically stated in his e mails was hey i don't have a license but i'm being sent home and these non american citizens who are not u s taxpayers who don't have a license are being kept here that doesn't identify any fraud and when the person said to him there's nothing i can do about it which is what he says he was told that's certainly not a concession that the contract requires licensing it's simply a concession that americans who didn't have licenses were too expensive to keep and so unless he went and got a license which he was free to do by the way to go home and get a license and come back another is he would have had to go to a different state well he would have had to go to some state because the state of missouri does not offer licenses and you know and as a side like it might seem you know we  license lawyers think that a prophetic profession has to be licensed so it might seem that licensing is a natural for electricians but it's clear really not there are many jurisdictions that simply do not licensed electricians and missouri where you lived is one of them he didn't have a license now nobody argues he wasn't qualified to be a journeyman electrician he says so himself he had experience he had education he was qualified under under any standard of the contract but he didn't have a license and illinois doesn't offer licensing to electricians either by the way there are jurisdictions within illinois for example the city of chicago that that offers licensing for electricians but as a statewide matter illinois does not licensed electricians and that's not unusual so licensing of electricians so they can connect wires to power sources is apparently not something that is universally believed on like say the legal profession or on like say the driver a driver's  license requires licensing and clearly the government didn't think so either because it set out for things that could be done to qualify people it said and or in between each one of those which is the classic way of saying it could be one it could be any of them it could be all of them it could be some and there's nothing in there by the way that says once a choice is made it becomes a revocable and there simply was no contractual violation here so we would  just contended the relator had no objective basis to believe that there was no contractual obligation florent it mits in its answer they informed him that it was a requirement of the contract for the journeymen licensure requirement paragraph three point eleven of its answer that in itself i would submit to you is an objective basis furthermore with respect to the burden to show who does the the other three obligations it's related position that floor had agreed that it was going to satisfy this qualification requirement by a licensure requirement for comes back saying they're qualified anyway it doesn't say how they're qualified not with was standing its licensure requirement it just says they're qualified it doesn't say how their policy i did doesn't say what makes them qualify it acknowledges that it's only chosen method of fulfilling this quality requirement was its licensure requirement with respect another allegation for contends that this was not a widespread practice floor doesn't acknowledge an email where the entire base does not have a single licensed electrician on it similarly under summary judgment standard there are multiple of finance in here send that they observe this practice not an isolated manner but on every base that they were stationed and it occurred quote unquote quite frequently and i'd remind the court of the contract itself which indicates in its scope that prefer the employing qualified individuals at a journeyman level i priority something that is a contractors first priority cannot be said to be an immature requirement your honor pointed out that that flexibility is part of the contract and i would agree the flexibility the contract does provide floor that flexibility it could have said you know what what we're going to do is keep this open and we're going to use all four methods it didn't elect to do that and not only did it not elect to do that but when it