for arguments this morning is united states versus e i ok well go ahead we'll sort it out morning your honor so morning scott boyd of council of law firm of christiansen and jensen i am counsel for marc tracy slashed the government in this key tam matter against immigration irrigation district which we call the and nine my hope is to give you just some quick additional background that i think could be helpful then because there have been so many pleadings i think this is actually fairly well pled case and there's a lot of information there you all likely have questions answer some questions and then i want to be able to reserve some time for dealing with the attorney's fees at the end of this all started when the residents of immigration can rejected any idea on in about  ninety five shortly thereafter a large developer who went into immigration canyon beautiful canyon just outside of salt lake actually close to downtown it's gorgeous has a very nice crete very valuable land if you have water larger builder tried to develop a project called immigration oaks a multi million dollar homes the developer didn't have enough water and the wells he dug ended up affecting other wells and they ended up running into issues so they could not provide the water e i d agreed to take over the water for the developer and came of the plant used on funding using the drinking water state revolving fund through the federal safe drinking water act as is alleged in our complaint there's a couple problems with this number one you cannot use those monies for development you can only use those monies basically for repair and to fix a system and then number two it is specifically under the e p a rule and seventy four financially disadvantaged communities immigration is the exact opposite of that as this was being reviewed by the utah division of drinking water a gentleman by the name of dr a nisco recognize that this project allegedly to repair the water for sixty seven dollars residents was adding a one million gallon reservoir which he called preposterously oversized and and to his bosses in the memo he basically said i'm not signing off on this you know we have reason to believe that id did not disclose this memo to the full board we know this because one of the board members just talked to us and said i had no idea well do we need to get into the merits of the key town when our question here is statute of limitations absolutely so let's fly us us suppose st of all quick answer on why didn't the u s attorneys intervene ok because there's a six year statute limitations and they recognize that the th circuit precedent they made it very clear they but i can tell you i don't want to tell you what they told we would never have a relator here if the government if the government turning down the case meant it was no good right right so well there but there'd be able to be a lot less keep him case rises every single time that or anyone down t various reasons why they take or don't take cases i have reasonably their interest in the case if it comes back obviously on the statue limitations issue one of the key things will secure into nd got overturned recently and co chief consultancy that was the right which appears that all we have to do today i would love to be able to say that that's all you have to do to say but that's not what they're going to argue what they're going to argue is is that even if there's a ten year statue of limitation that there's a problem factually about whether or not there's enough information to cruel on a cruel yes ok and what's your theory on a cruel might that well there's a couple different there's an accrual st of all it's obviously written out it's clear in the pleadings i think what we have is a distinct difference in opinion about when this thing began key being was it at the moment that there was agreement made between each id and whoever was signing the bonds or was it when the id did the work made claims and was paid out of the escrow fund for the work that they performed our argument is and has been is that on a fraud when the fraud is to be able to get monies that you were not entitled to get the government damage occurs when that money is paid out so you guys will be able to see again there's a lot of pleadings on this and that it's you know somewhat messy at the end of the day and even though every day i wish our clients had gotten this to a sooner ok at the end of the day there was one set of payment out of six that was paid that would be within the ten year statute of limitations we know the government make it is suing for the moment that payment is the the key key date for cruel when did the government make its last payment wasn't that when the bomb closed on november st two thousand and two and then she was certain your original pleadings it was when the bond closed although you had the date in two thousand and five instead of two thousand and two which at that point would have been within the six year limitation assuming payment is the key date why isn't it what you originally seem to think it was which was when the bomb closed on november st two thousand and two because there wasn't there wasn't a payment made to at that point all that happened is the government money as well as other monies went into the government's reliance occurred back in two thousand and two the act that's problematic here presentations that's right but the misrepresentation whether or not and how they're going to be building this project ok and it wasn't until it was roger heard before two thousand to the building of the product no no the misrepresentations of the argument is a misrepresentation to continue throughout every single time that they made it clear that it prompted the government to to ultimately agree it prompted the government to put money into an escrow account from that escrow account no monies come out until there's a separate claim made by the that we have done the following work now we're entitled to money who do they make the claim for payment to the division drinking water was the one who is handling the escrow that's a utah agency that a you tired and so got the us government agency and you'll notice in the rd amended complaint there's a reason why we actually have government ploys who are actually part of this complaint now is because basically utah was self certifying that this thing was being done properly and the reality was it wasn't they knew it wasn't but they didn't care because they want to be able to get to the federal funding and that's the whole point of the key tam and the federal except in that is true where is the false statement to the federal government because you can't pursue a key to action for a false statement to a state agency oh when they were filing everything outward for federal funding i am almost one hundred percent certain that there is a nother level that they have to go to to be able to get an approval you have a record signed on that i don't have a record site but that's part of the other issue all this is on a motion to dismiss we haven't been able to do it i mean we should be able to find out that that seems like that would be a publicly available document and we can certainly look and see if we can find it i do not know that information right do you have a case where somebody has made a claim for payment to a state government agency and they were able to rely on that as as the false statement to the federal government again we can look for that i do not have a case that i can cite to you at this moment on that but again arguably this is in some ways no different than any time somebody self certifies you know this is a diesel certifying to the state states certifying to whatever federal agency is providing the funding fund obviously somebody had to do that so what do they have to say to get the money that i'm assuming there some kind of a schedule that they've presented as part of their project and they say we've completed phase one and the state of utah says yes you have he five hundred thousand dollars here's sixteen dollars of the payment or here whatever the case may be as you finish different parts of the project so do you have in i mean what's false about that i mean well the reality is was false was the whole project should not have been allowed to go forward right but then because it wasn't but that was approved i mean that was the fall that was approved based on an allegedly false statement prior to two thousand and two it was approved but again the let's flip it slightly what happens of somebody new comes on the board sees the memo and says whoa wait a minute we can't do this this is improper use of the money and they stop work where does the money go out of the  ok obviously whatever percentage is left is going to go back to the federal government that money has not yet been quote unquote spent is put into a bond it's being held there it's in escrow i have or minutes lacked and we still have the two attorneys it's also really clear what a violation is for purposes of the statute under thirty one dollars u s c three thousand seven hundred and twenty nine dollars a violation occurs when a person knowingly presents or causes to be present a false or fraudulent claim for payment  did say that the claims are barred under both the six year statute of limitations in the ten year statutory posts she also in her decision and a part of the part of ardent part of our appeal here is from the dismissal on the statute of limitations issue district court in this case we did argue below but obviously we're going to argue that nd is controlling it was controlling it was th circuit precedent but we specifically argued that it didn't matter because even if th two thousand and four date as the last possible date and you and that was not within the six year limitation period but now that would barely be within the ten year limitation period and i think your argument is that's not the right date and i don't think the district court necessarily thought that was the right the either but she said that's the last for that you know that's a last possible so don't we need that district court now to say all right here's here's the date you know the last finally no your honor you don't because in order for that it to have any relevance a court would person at the except that is when the statute of limitation or the statute or repose runs in defendant acted even if this period ends before the pointed at supper the resulting injury that statutory pose doesn't matter when the government suffers injury it doesn't matter when ok payment is made and again and in c t s core the and when it starts when it stops and statute of repose it has been argued and i mean are going on we're not going to look into the record and try to figure this out for ourselves if there hasn't been an opportunity for briefing on that key question but certainly it was argued down below it was argued to this court that i mean the king of clearly part there claims when it was good law but the fact is that it doesn't matter their claims are barred regardless they're the statue's clear it's not when the government makes payment it's when the violation occurs and the violation in this case has to occur prior to the bone closing in a representations of the government to get the government to give the a lo occurred prior the bond closing let me ask let me ask you to assume something let's assume that the escrow was managed by the federal government not not the state and that the last payment occurs within the statute of limitation after some certification by the district so so so you're on to let me be clear that this is wrong i mean they the record is absolutely clear if you look at the bond documents the escro was made based on a certification by the district within the limitations period that change the analysis well no i mean i think it i think you still go back to it doesn't matter mean their argument is that the last request for payment out the escrow account the last time the district said we've been issued the project now we want the treasurer to the state treasurer to release the remaining division of drinking water has affirm that the project was completed as it was intended to be completed the state treasurer released that money three dollars days prior to the ten year statu that's the only thing in this case that happened there was no false statement there was no request for payment from my clients within ten years of when they filed the complaint so based on those things so even if the us government was was the  escrow agent in this case there was no has taught us the case there is no there is no false statement they cannot point to anything that we did other than receive the money from the state within the ten year period and if not i went to the request for that last payment was outside the limitations period as telling me correct your honor and they don't allege or argue that it was they they go back to payment they say this is you got it their only hope is to go back to this payment and i also want to point out that there are a couple things one is he said that their argument throughout this has been payment and not violation that is absolutely untrue whole discussion you're having plan made or payment only to the extent the judge parrish cited extensively to c p s corp and judge parrish clearly was trying to articulate the difference between a statute of repose right which is which the supreme court has said is not a cruel i mean we we don't need to argue this is supreme court has made absolutely clear that the statutory pose is not based on a cruel it's not based on when the government occurs damages and this is a statu almost every court that's ever considered the ten year limitations as it's a statutory posts mean that words in no event clearly indicate a statutory pups but i want to go back to their argument where they say that this is what they've argued they say based their own arguments they're saying we understand that our coins are barred by the th circuit precedent setting a once the government refused to enter being for the nd time that's when the district court said your claims were frivolous because at that point you court make that decision no doubt your honor i don't believe so because again we have a district court the didn't need to get to the next step that doesn't mean that this court can't look at absolutely clear statutory law and say the statute doesn't say payment the district court shouldn't accept this legal argument of payment and nd of all even if the district court was to accept payment that payment occurred outside the ten year statue repos i mean this claim is barred by so many grounds remanded back to judge parrish who in her order talked about the difference between a statue or pose a statue of limitations she's clearly going to rule one way i mean why waste the time and energy remanded back your honors i want touch briefly on attorney's  outside how do you claim christensen jensen pile the rd amended complaint based on factual representations made by tracey but your honor that is not correct in their briefing to this court christensen jensen argued and this is a parent's response in reply judge paris was far too generous and saying that they're relying on actual representation made by their client they knew by the time they filed their thirty minute complaint that the bond didn't close on may rd two thousand and five that it closed on november st two thousand two this is the simoneau event in their higher case they're trying to argue we didn't know when the bomb closed and they're trying to you know the argument that somehow they could rely on their quiet and  they didn't know that when this close but even if they were they said by the time we filed our rd minute complaint we knew our facts didn't support our legal position they came back and argued the exact opposite statutory interpretation believe didn't i believe we've dealt with that in our briefing and i don't know what now you cite one case jana which was decided before the supreme court decided graham it's a federal court claims case and it's pretty clear that graham supersedes janet and jenna's reasoning has been criticised based on that is there anything else that you would rely on post to graham i would rely on the information that we provided in the documentation which is basically when you have a claim that seeking actual damages so not just penalties but are actual damages is that the events necessary to state the government claims did not occur until the government has made whole payment of the  we have to have the government damages involved now part of the question is and again we're stuck on this weird twenty million fifty two thousand and two thing may two thousand and five is when d d w closed the project that was the end of the whole project and we were done ok that's what's causing some confusion because that was the date that we thought we were dealing with from the beginning once we then later found out about the date that the bond was funded not closed the project didn't close in two thousand and two the representations continued to be made that this project is going to be made pursuant to federal law that we are not going to be building out a project that is actually for development that we are not going to be you know taking advantage but when you found out that the bond closed in two thousand and two instead of two thousand and five you changed your legal theories and of course we did and that's the exact time you should change your legal theory when you've got a complaint right at that state and you don't want to do it later we thought we had two thousand and five we were worried about what we figured out was in two thousand and five it's like ok dig in what's going on what exactly happened when we're payments made what are the argument and then you find the best legal theory that you can possibly find to work with it the nice thing for us is we still think the payment issue is under site and as long as that continues to be undecided because again at any time the stop the project where would that money gone x amount of money would have gone back to the federal court the earth to the federal government they wouldn't have been quote unquote damaged so assume for me that payment that you're wrong about payment when is there a certification within the limitations period is a certification made by my id they had requires will have requirement or a payment request or an application for the final payment something saying give us the last payment of the application for the final payment was in september two thousand and four that was earlier in the month before that led up to the final payment the end they had to certify every single no i understand is that is that last is that last request for payment within the ten year period just outside ok hence the reason payment what you say to one dollar thank you thank you both for your arguments this morning the case is submitted