wednesday he is on he has helped us with our work on many occasions and we very much appreciate his s ound system it's going to be that one of those days i judge a judge bowed out as a senior circuit judge and the work of the judiciary would really grind to a halt if it weren't for the contributions of our senior circuit judges they shoulder twenty percent of the workload of the federal judiciary and they work for free they would get paid they'd be paid bar ought to be really grateful so we're going to hear four cases out of this afternoon you should know that we're familiar with your cases we've read your braves we've read the authority cited in your braves record you know we've looked at least the portions of the record that she cited in and maybe even more of the record and we're likely to have some questions for for you this  morning and the limited time that is available to you feel free to get straight to the heart of your argument kind race particularly the highlights of what you want to raise before we are likely to ask you questions  the questions of course are for our benefit and that's really this this hearings for our benefit if a case has been set for argument it's because we probably have some questions because we he are relatively small percentage of our appeals in oral arguments so i think our visiting judges will tell you though that when we have a case that set for all argument it probably needed or large you meant and  and it means a good week of work for all of us up here please don't treat the red light as aspirational when the red light shines if you're answering a question from the court of course feel free to finish your answer but i do respect the red light and our time and if we need more we need to give you more time we will be so so our first case this morning is our united states versus couch mr v remedy is not the business of a criminal action or criminal action is about punishment the remedy is to word it you expect to use him in a civil or administrative setting  that is true but aren't there plenty of those and there are plenty of case law that says that criminal for furniture proceeding operates quote as a punishment against the party who committed the criminal acts that's what our is that the the stat sheet that regulates the criminal forfeiture proceeding we're dealing with actually provides for the rights of intervention that do not include this intervention isn't that right crime or a bona fide project server value who is at the time of the purchase reasonably without cause to believe the property was subject to forfeiture that's what the statute provides neither of which involves the situation we have here today well there are the alternate remedy provision provides had the later to participate in that alternate proceeding and to apply the forfeiture quarrel with the first part it seems to me of what judge baugh duck said which is the tune which is what i was last asking you about it two ways to intervene are the statute that regulates form for sure proceedings does not benefit your client your ear instead trying to rely upon a different provision in the false claims act that speaks to alternate remedies right  about punishment how do i get around that problem that was the first problem i brought it  know punishment that involves the proceeds of criminal activity or property involved in criminal activity now that we know what case law can you point me to what law can you point me to that would suggest that a criminal forfeiture proceeding could come within the scope of the meaning of a remedy in the force claims that publicly noticed or was not known before she filed her action all of those elements that you need to prove that your clients in tata receive money your argument is you are entitled to do all your argument you have the false claims act where you're arguing any remedy alternate remedy and you have that the criminal probably didn't says no intervention can be had except for these two exceptions and provision is mrs carter standing for a limited purpose to intervene in the forfeiture proceeding to assert her related share the criminal court heard seven weeks of trial in this case part a number of different witnesses their best situated to determine whether or not mrs carter is in fact a qualified relating under the statute and then assess damages it makes sense in judicial autonomy to have a criminal court but it doesn't matter my opinion basket this is an alternate remedy absolutely aren't they when you compare the indictments to the complaints that we filed you will see that the allegations match up substantially expressly forbids parties from intervening absent certain circumstances and numerate in eight fifty three and and they concede i think that they don't meet those circumstances their argument as you pointed out judge doc at the end is basically pursue its claims or any alternate remedy available to the government including any administrative proceeding to determine a civil money proceeding i can including would indicate inclusive rights are not but my point is simply that it's evidence it's textual evidence that what congress had in mind was a ministry of sort of proceeding based talking about a remedial percy yes let's let's let's ask a question this way let's say the government gets the property the property is actually are they able to as the defendant and that action able to say oh it's already the obligation is already the debt has already been satisfied and that's that's thank you for that making that point the  civil false claims act action there are no cases where they make the determination in the criminal code when the property has been forfeited virtue of that there is not there has not been a remedy for that yet that's correct and the point that i really wanted the united states wanted to pursue a false claims that claim for this debt it could be said i believe and that the me point here if i can get nothing else across is that the government has not obstruct isn't an alternate remedy i don't think that's a search that would be another again as congress is something like an administrative remedy there are statutes that allow for instance the department of health and human services to prosecute health care fraud annotated in history to proceeding you know shut down the key to him and then said i'm going to go to this administration for simplicity and that's precisely the sort of circumstance in which thirty seven thirty five to allow you to say i want some share of that you can't cut the ultimate remedy provision is first and foremost not a way of sort of short circuiting the proof you need to make in the false claims act case and pointing to something else that you want to piece of over there so if she were to prevail in the false claim in and get a full satisfaction of the judgment a portion of that would go to the government yes a large portion of the government would go to the government where the statute allocated in a non intervened case she would get between twenty case there that money currently sits in the d o j asset forfeiture fund but it's also important to note that when the government you know does takes a criminal case and does forfeiture proceedings there's restitution he gets paid to lots of people and there's a federal statute that says the restitution goes first to the nonfederal party so there may not actually be any money that goes to the government as a result of the criminal forfeiture action once all the rest additions paid out but that works no unfairness to the later i you know basically seeking a substitute remedy somewhere else and they're primarily administrative proceedings or like a global settlement of another key tant that's the sort of technical scenario in which this arises and the relator says we're frustrating my right to recover in my case i think i should get a share of that thing in no event in any of these cases does the relator get to barge into criminal proceedings and i want to and this is talk about the vandyke case in the night and that's that's really the vandyke court you know properly said it didn't have to decide for all time on a global basis whether a criminal forfeiture action could ever be an alternate i mean it just had to affirm the denial of intervention in the criminal action that's all we're asking this court to do here because there's actually ask a specific statute that regulates that intervention and that specific statute even by that petered of interveners own concession does not allow for intervention  pursued in another proceeding the person initiating the action shall have the same right in such proceeding as such a person would have had if the action had continued under this section so that is a strong implication from the text of the statute that really the kind and were do obtain satisfaction of the debt through a judgment that really would operate as a defense to the false claims cival whatever it was and then the relator would be if they were that credit was honored that would later be tight intitled to claim a share relator share twenty five to thirty percent of whatever that credit was that's the way these work but that's all something that happens at the to the extent there's overlap the question of the hard questions here is how much is there overlap whether she has a valid key to him there's public disclosure issues there are false claims act issues whether she's the public disclosure bar she can satisfy that whether she's an original source those are all false claims act issues before you get to these difficult questions at the end of the day what i'm telling the court is that it's the government's practice that if at the end of the day she could recover and there's money that the government has recovered from something that it deems to be an alternate remedy that defendant would get credit and she would get a piece of that i should note that in this particular case there is a lot of claims by non federal parties who are victims there may well not be any money is the result of the criminal forfeiture proceeding based on the cases a lot of the alternate remedy cases involve a relator and one key tim suit pointing to another key team suit that the government may or may not have intervened in and saying our stuff overlaps with that we came first we probably that's not an provision doesn't sort of short circuit the process under the criminal statutes which you know decide you know how you get to come into a criminal proceeding and the alternate remedy provision isn't a shortcut by which you can sort of abandon your key tim mistry and say i don't know what's going on over there you have to have a valid overlap and those are things that are decided in the civil faults claims act case not in the criminal proceeding and so all we're asking this court to do is follow the ninth circuit's well reasoned opinion in vandyke and affirm the denial of the motion to intervene which would mean under your court's jurisdictional rules that you would dismiss the appeal for lack of jurisdiction thank you ross thank you been levied against them in the forfeiture proceeding then this is carver can have a hearing before the key team court to establish that she is a relator and if she is the relator share i believe that's the government's position on that they've stated that in her in your honor brought up the interesting point that they can't cite to any other form of alternate remedy besides administrative there are three forms of remedy ci eight months later then there are the false claims act then they moved to extend the seal period for three and a half years while the parallel criminal action for ceded the verdict she was seek damages related to health care fraud which is exactly what they did they went after these doctors for overprescribing medication for falsified their lab results and they sought damages against them for health care of that was the alternate remedy that the government secured in this case and we asked the court to follow the structure that the alternate remedy provision provides for relator is like mrs carver usually or say can mr ford that you