the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america at this honorable court court is in session ten fold price increases which happened only in the united states for multiple sclerosis drugs in decreasing use the price increases began suddenly when medicare part d was implemented in two thousand and six per patient prices for multiple sclerosis drugs increased tenfold from ten thousand dollars per year to greater than one hundred thousand dollars per year per patient while at the same time prescription for these drugs went down fifty to seventy percent there is obvious anti competitive behavior here the scheme and volves fees paid by pharmaceutical companies to pharmacy benefit manufacturers under part d as part of a secretive national contract tied to huge price increases this has caused more than sixty billion dollars in harm to patients families and taxpayers the court below did have a brief hearing and it granted the government's motion to dismiss based soley on the government's resource burden claims without considering the evidence of the merits of the latest case nor the huge scale of alleged patient and public connor the government's resource burden argument is contradicted by its own actions the government suddenly moved to dismiss this case eleven months after it declined to intervene and after a briefing was filed by the parties on defendants joint motions to dismiss if the government had really wanted to reduce its  could have waited to see whether defendants joins motion to dismiss was successful instead the government added immensely to its own resource burden by moving to dismiss this case itself the illogical timing and forseeable increase n the st few weeks of law school we all learn how to interpret a statute where a word is not defined and the st thing we do is use the plain meaning rule and senator grassley has actually stated that his when he was drafting the one thousand nine hundred and sixty memon so his idea of the meaning of the word hearing to notes a proceeding in which a judge makes a determination based on evidence and the law so that's the st thing the nd thing is we use statutory a history specifically refused to consider the magnitude of the fraud again over sixty billion and the government's claim that the case lacked merit is belied by its own filing in u s versus t v on aug th two thousand and twenty where it's a hearing where in the party has been notified i mean why why wouldn't we read that to exclude the same kind of detail provided in one section that it was intentional that that type of hearing not be it was an oversight it needs to be addressed by congress but a hearing are not hungry you know who and we don't legislate that is true but he alleges that the word hearing implies the weighing of don't know of any reasons in court authority maybe you could point me to a gap that says we should even look at something like that when we're trying to interpret a statute well he has writing about statute i think that we are going to just use the plain meaning role and even under the plain meaning role this relator is a title to an evidentiary hearing some cost benefit analysis because when somebody makes an allegation that they have resource burdens they would necessarily make a cost benefit analysis themselves and i think it might correct that a dismissal of this type is not with prejudice as to the united states  in other words a dismissal under two way when the government moves on to two way to dismiss an action it may be present with prejudice as to the later but it's not with prejudice as to the united states right there in the united states could could bring this action itself where is if it if a case is settled under to be it's presumably going to be with prejudice as to the united states yes that's our act so it makes all the sense in the world that in two air congress would simply say an opportunity for a hearing on the motion period w not only get a hearing but the court needs to determine that the settlement is fair adequate and reasonable deserve a reason why that latter provision would be in to be and not in two way and yet it seems to me that you basically want us to add that clause back into two way that congress left out of two no i would argue that i'm not asking for that i would say though that  dismissal is much more final than a settlement and it makes sense that the standard for dismissal should be at least as strenuous as the one for a settlement well why is that because when you say dismissals more final than a settlement i see it just the opposite the day after settlement that's it no one can see the day after a motion to dismiss is filed and acted on and granted the united states in its own name could bring this action they could they could but you know they can they have happened they have that pursuing a couple of these theories against individual of foreign pharmaceutical companies they have they have but the united states may be the main party in afternoon your honor has made it please the court amy romero on behalf of the united states while the false claims act allows private individuals such as the appellant in this case to bring civil fraud claims in the government's name on behalf of the government for harms done to the government the act also grants the government broad control over those actions including the right to dismiss the case notwithstanding the objections of the relator and as this court pointed out in car balance that's because it's the united states it's the government who is the real party in interest in key tam actions these are how to govern medically how does the court how does the court have a role then potted plant in this really don't understand if if there's has does have meaning st it allows the relator an opportunity to try to convince the government not to dismiss the case so that it has no role for the judge the guy under and telephone swift in this in the d c circuit  decision swift did leave the door open or ajar to say that in exceptional circumstances such as fraud on the court or maybe there's an unconstitutional mode of where the relator makes a plausible are credible showing that would be an opportunity for the court to consider denying the government's motion to dismiss that is not the case here in this case the relator there was no credible showing a fraud on the court or unconstitutional motive but they explicitly refused to adopt the swift approach there doctor protrudes seems other constitutional basis to contemplate some role for the court what what what is your of the statute and the no supreme court decision heck reveal cheney the th circuit decision that i filed the twenty eight dollars j letter was to bring that because it was a recent case circuit case directly on this issue and not something  circuit hasn't decided we wanted to bring to the attention we the government disagrees with the finding a part that in a th circuit they found that the government had to intervene st before proceeding with a dismissal motion and we don't agree that the statute requires that but we do think the swift standard of unfettered discretion is one that is consistent with the general article to deference and prosecutorial discretion and the plain language of the statute when as you pointed out in the questions to take counsel for appellant when there are provisions that have substantive standards in the following provision for settlement and many other preservations of good cause and that is not the case in the dismissal provision this court and it's a familiar mode of statutory construction this court has taken that approach before and millennium laboratories last year in hindman kouta when congress wants to put a a certain standard in the false claims act it does and when it doesn't we can in fact take a negative inference from that so here there is no substantive standard of review in the dismissal provision and we think therefore that court's roles should be limited criminal case that you have to bring in certain type of action that the court would be telling your executor that it has to initiate a prosecution and that analogy seems quite an act in this setting where by statute  in protecting those interests seems to need to be rather extreme concession i agree that the distinction between civil and criminal is quite different thank you where where congress has given relator the opportunity to him essentially self appoint themselves as the partial assignees of the united states we think in c to a congress has given the government the authority to revoke that assignment essentially in a say no you know these are claims in our name we don't want you file a nose claims on our game we don't want this case to go forward the united states is best as is the best position to decide what cases should equal protection constitutional constraints on the grounds upon which the government would seek to dismiss your claims that relate or some even in that case the government didn't acknowledge there are constitutional constraints we think that swift did concede that in saying it leaving the door open that said for bribery on the court or other extraordinary circumstances which could be an unconstitutional motive such as discrimination all that to say in this case there is no showing of that here the relator has not raised any sort of unconstitutional mode of it's merely a disagreement with the government's decision to terminate the case  that the relator thinks that this case is worth a lot more than the government thinks that's worth it's a disagreement with their time enough when when the government chose to file the motion to dismiss and those do not raise to the level you know these are all necessary that there is no there's no requirement of that now as i think you pointed out your honor enough in a question of my sister is that you know that the talk about the evidentiary hearing had to do with an onion acted senate amendment i don't know i don't personally know whether all the circuit courts best record had an evidentiary hearing prior to that decision that's something that i will have to look into and file a twenty eight day letter  correct prior to the circuit court decision i apologize i don't know that whether that evidentiary hearing was held i do know in sequoyah orange that was that where there was an evidentiary hearing and in that case the the government moved to dismiss a very far along into the case after it had it had intervened and there were thirty four cases that had intervened in ten of them had intervened and others there were settlement on the table and that it had to do with timing decision of the citrus industry and there was that but all of that's to say i don't think any of the circuit court have said that an evidentiary hearing is for acquired or necessary and i don't think here there's any sort of there any showing that an evidentiary hearing is required or necessary in the government shouldn't have to litigate its reasons st of all the relator in the government are supposed to be on the same side in you know in theory and the whole idea of the government doesn't want this case to go forward is because a resource burden so then to require the government to have to put on or defended evidentiary hearing is is counterproductive to this resource footer and and also would make the government have to expose some of its prosecutorial enforcement decisions that really should not be subject to judicial review well on that last point you could have a case i suppose with the government felt there's a problem with the case it doesn't want to devote resources and doesn't think the timing is good but might see a way to figure out in the future how to get around that problem and be averse to disclosing now what it sees as the problem in the case and if you had to have a hearing you could be put in that position absolutely there's a lot of policy decisions that come into play when the government decides whether to terminate and when to terminate  and admitted that they were part of it it would be very easy and a short evidentiary hearing like the one given in the swiss case and square aren't had a four day evidentiary hearing that this scheme was going on it sounds like you'd be trying the hearing you desire it sounds like you want an opportunity to convince the court that dropping the case is not fair adequate and reasonable given the merits of the case that you've been able to uncover i think it could be established very quickly that this scheme was in existence that's what i'm saying we're not afraid to get the core what do you think when i look at the b standard  expressly says the court needs to decide that the proposed settlement is fair adequate and reasonable the hearing that you envision under two and a at the end of that hearing when the court under your view be required to make the same sort of determination that dismissal is fair adequate and reasonable not at all but would have to decide it would have to decide that the that the think it's more like was it arbitrary or precess and that is what the relator alleged here that it was arbitrary that they had not investigated the main part of the case and that they had not interviewed a single witness that he provided to them all as they say we just don't want to spend any time on this case now that is something that is done reasonable i think that  that's the reason for the key temper vision in the st place in one thousand nine hundred and forty three the d o j took over all the cases and then they got overwhelmed and then they put in the key temperatures and for situations where the government would not or could not take the case allowing the executive branch to make nonspecific resource pardon claims and then combining that with unfettered discretion to dismiss ongoing cases opens a pandora's box of potential corruption and possible favoritism that concludes the arguments for today this session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court counsel you make disconnect