when you are ready answered by this court was actually framed will by the government and if it were you to page sixteen when you said this did the government prove by clear and convincing evidence that the contractor knew that it submitted claims were fal victims of hurricane katrina and answering the question the government posed it's critical to understand how those invoices were prepare and to prepare alka technical the problem here as you go made the same finding in certain circumstances your honor that brings up the supreme court case of andersen be sitting vs city of bessemer where the courts freeport said the trial court cannot insulate its findings from review denominating credibility determinations credibility determinations only come into play if there is conflicting evidence and credibility is used to decide and pick between two conflicting pieces of evidence here i hope that show you that there was no conflicting evidence as to the state of mind of the person who repaired those invoices at the time they were sent to defame and that brings up the two sections of out protection organization there was a home office in jackson there was a field office two and a half hours away the field office personnel made these monthly inspections of the fema trailer and they filled out an inspection report about two thousand a month and they sent those in to the home office sometimes by fact sometimes hand live or they did those those inspections under the direction of the home office is that not true that's true your honor under the direction to do that not necessarily the that ok go ahead and press the home office about the tech when they get these inspection reports from the field office which sort the inspection reports and they would produce a summary that's said which ones are valid and which ones can be built of things now it's undisputed here that the only person who prepared those invoices and submitted them to famous was rosemary barber who was the president of the c e o and the owner of without documents but from good recollection that the mr oliver the operating officer said that that brings into play the law won't forfeit your claims act under the false claims  clear and convincing evidence that at the time in barber submitted an invoice to famous she knew that invoice contained invalid inspection circumstantial evidence to clear and convincing circumstantial evidence if it's of the right type can be clear and convincing in fact the new york market gardeners association cases cited by the government and i believe in the opinion for that position and that case said some circumstantial evidence can rise to the level of trumping direct testimony but here's what the court went on to say that the government has the burden to show that the circumstances are so clear and convincing that the mind can rest with safety upon the result to simply say that ms barbour didn't follow the wishes of the month on how she submitted those invoices to famous fema going to stop at any point said we're not even going to consider another one until you do it the way we want to they were working together they were going back and forth on how to get that done there's no evidence circumstantial or otherwise that ms barbour in doing that was trying to hide the fact or that she would need to of the fact that there were invalid inspection reports in any of those airwaves there was testimony as i recall the record that when people approached her and told her that there were things going wrong that they were terminated is not those of that's not correct that's not in the record the government made a leap of the fact that when one home office employee this is way after all the invoice eventually made when one home office involved in boise print out a computer printout that she said shows them  majority review them and that one found their own duplication but that person was later transferred into another position there's no evidence that there was a quid pro quo there there's no evidence of that transfer was related in fact it had nothing to do  home office staff members as the government witnesses it drop and that's the key testimony in the whole case when it comes to the forger claims that what did those two witnesses say or more importantly what did they not say they're the ones who provided the fully support that the fall of claims act findings that the lower court may but you believe that would be insufficient as a matter of law and as a forfeiture act that's exactly why other than lower court decision apply normal activision theories and the law the statute itself says that any person who practices fraud against the government has performed so the case law has to develop what does the word person mean in terms of a corporation and the case law has been consistent in saying what that means is the person and the corporation have to be one in the same leg or arm will be the case months and consistent to lower court case and acting in the interest of the corporation can find a corporation that's true under most cause of action it's not true under the forfeit your claims act is a corporation a person in this city alone is not a person is an artificial person that made up of his own two statutes in california that say a corporation is a person yes it says it's a person made up of the board of directors and the stockholders of the corporation why aren't work put it this way stark because it was there the court found that the chief financial officer and a stockholder of the company had committed dro but the court said that's not enough under the four pictures that you recall that person was not a corporate officer he was not the president and he was not the majority stomach over the only case the government sites is germane versus durham man versus united states which is breach of contract case for grading haiti and selling it to the government in one thousand and eighteen to feed government horses and in that case the government says well an inspector was enough to bind the corporation but what the court said in that case it didn't address the issues then not even clear that the issue was raised on attribution but the court did say in its findings that the president of the corporation was indicted for fraud on this very transaction which is probably why that provision issue was not raised other than that case the government points to no case where the president the c e o or the majority stockholder someone other than that person or someone other than the person who was charged with preparing invoices and submitting to the to the government could be attributed to the corporation here mr oliver was neither he was very clear in his testimony that he had nothing to do with invoices that was only be liable for purposes of injury claims yes your honor the cases say that's the exception if the corporation charges an individual with preparing invoices and submitting to the government then the corporation responsible for the fraud of that person but the corporations still be subject to forms to correct that from my question to you is it logically what's the difference between that person and the person to be sitting at the very next desk who is actually doing the that doesn't mean that's right that doesn't mean that john or i think the rationale is that the courts disfavor a four picture ok and if the court is going to order a forfeiture there has to be clear and convincing evidence that the person in general practice there is no specific testimony with regards to miss barbara's knowledge of the falsified preventive maintenance inspection force no one if you would that was that there was no video camera that we had in the office observing what went on that the court inferred from the testimony at trial however that miss barbara was aware and it's especially relevant in this regard the testimony of miss jenny jones and miss jones testified as to outstanding executive testified that she did it with became uncomfortable was the word she used in the changes that she noted into the invoices that a dispute arose between herself and this blogger and on that basis specially credible commenting that she observed irregularities in the invoices and that those invoices caused her to leave so certainly there was more than sufficient evidence in the record for the court to conclude this miss barbara had not been larry's in the invoice and we have to reach that conclusion as to what would you have to in order to affirm you only have to determine that the court's conclusion is that when it has been met his his burden to demonstrate by clear and convincing evidence that the court's facts on is  a thirty seven page decision that sets forth in great detail the circumstance that with my question the question is do we have to do we have to agreed that there is sufficient evidence as it relates to m to the corporation as we pointed out there's an old court of claims decisions assumes a low level of low level employees fortune x can be a constituted basis for forfeiture under south corp that holding should be binding on this court there is no authority in which this court has ever rejected that proposition and in fact when this argument is the court should reject the stated holdings in long island savings which would suggest that normal principles of agency apply now this really comes to pay some li proceedings so this is a completely novel argument an attempt to carve an exception out of the forfeiture of claims act that has no support whatsoever in a quite case law and as a matter of fact it's inconsistent with decisions of this court that is the stated holdings of the court or federal claims should not have followed the stated holdings of the cases that is the stated reasoning of the court but rather should have looked to the fact that in the decisions which they marshal in their brief in fact that corporate officials with authority to invoice the united states with the ones knowledgeable of the fourth so this case in a way presents a really fundamental question of common law and this is the court bound by the specific factual similarities of these decisions and by in some american section or is the court bound by the stated rationale upon which right decisions of rest in the government's view where that the facts are present and the court states the rationale that that constitutes controlling the president it's not the factual specifics of a case that control the court but it's the stated rationale of the court and if you accept that proposition the trial court's decision here following the express holding in long island savings is unimpeachable and only if you accept aftertax contention that the court should look soley to the question of the individual facts of a case does it become that that same employee responsible for the billing was the one knowledgeable concerning aspects of the four but but points to no case of holder suggests that the the that the forfeiture provision be so level of authority the fraud committed by someone lower down would not be attributable to the corporation least in this context is it not i don't think you can say that it doesn't reach the question your honor i mean if we go down far enough and if we divorce the acting on his own interest that's not a trivial corporation that's the philosophy that we're all assuming now a set of cases in which the employees least putatively acting in the interests of the corporation but without the knowledge made here that the employees were acting for their own interests and this was a matter of convenience the court as a matter of fact held as not to be the case and no reason for them to generate point reports so the issue here was the preparation of preventive maintenance inspection reports that benefited the corporation by constitute a billing the corporation could make to the government under those circumstances under principles of agency general principles of agency law the corporation found without protected asking is an exception to applied in assessing corporate way of the corporate criminal liability and certainly to be no basis for this court to find the forfeiture of claims act had a more strenuous standard to be applied well for going to apply standard for our principles and standard agency principles then why isn't the knowledge or lack of reliance on the part of female meaningful because the court here specifically tell contrary to the falcon text contention that female does not have that knowledge the fortifications the preventive maintenance inspection reports because that required a detailed analysis by the government and involved information provided to a the inspector general of fema and ultimately the f b i and admittedly the government acquired that knowledge but it was through an independent civil and criminal investigation into the circumstances so that the court of federal claims specifically held as a matter of fact that the court the fema did not have that knowledge and the motive if you are evidence and on the not acting closely because under the stafford act the sema transition to local contractors and as the court of federal claims noted that involve inefficiencies and difficult in managing case but there's nothing in the record to suggest  that the the government took this in retaliation as a result that started for it claims as retaliation for a few misconduct if i could before my time expires is a new argument raised in the reply brief that i'd like to address briefly and that is at pages ten to twelve of the reply brief out the tech argues that notwithstanding this submission for a joint claims no basis existed for the entry of a judgment forfeiture and that is because the contract had a fall of the assurance program if it was not if it is held not to have been waived the court should refer to a transcript portion which is not included in the joint appendix that is the peers at page twelve fourteen through twelve twenty six of the trick trial transcript in that transcript is the the trial court addressed this argument held that the argument made no sense because we would run toward portions of the contract meaningless and call the argument laughable and out the text counsel at trial was asked if that really was the argument he m having corporations cynically designated as potential defendants there simply statutes which corporations are indicted for violating and when that happens it's certainly mind you standing there the corporation is liable if under agency principles someone in the corporation who's answerable for the corporation is going to get that partially true and some from all here we've got a civil scheme in the scheme is to fold th schemes is a lower level employees actor attributable to the corporation for purposes of collecting damages you can sue the corporation the government can recover damages for whatever that person did but when it comes to forfeiting legitimate claims over to the government there is a higher standard and there's a rationale for that and then when you said that this century twenty languages is the language that embodied that different standard i should have said market p thirty three is the most important where she fills the people scrubbing these invoices i want you to check them and double check them to make sure only invalid invoices get valid inspection reports good to meet invoice p thirty one with her directive to the very middle jones that mr grove referred to in which she told ms jones very early find out why these duplicate the famous keeps pointing out to me after the fact or getting through that killed you the mindset ms barber and the numbers also tell you the mind set two thousand inspection reports a month for twelve months and the government's consultant spent two years analyzing these and he found one hundred