good morning your honour's good morning my name is jackson schmidt i represent carl schroeder he was originally the plaintiff relate her in a key tam action filed against c h two m hill after a long period of investigation the united states intervened in the action in the course of that they filed charges against mr schroeder he struck a plea bargain he signed and for purposes of this argument we fully admit that he was shoes continue to be a real under the statute i believe and some of the saul argument that i have here for you today is that the statute was never intended to be applied to a low level have is is common sense and legal logic well but if the plain language we start with a plain language and that's pretty standard with judges and if it's not if it's not ambiguous then it began to ends there now if you could show us what the ambiguity is then we start talking about the policies but even if we look at the policies i and i think isn't one interpretation of the provision that congress didn't want anyone convicted for their role in a false claims to recover anything regardless of the level of involvement in other words isn't the conviction itself an indication of culpability i think that the ambiguity that you look at is see in thirty seven zero three itself and it's between the two  one that says someone who is a promoter and an initiator of a scheme gets a reduced share of the reward is eligible only for a reduced share whereas someone who is convicted gets nothing but in case as that statute is applied to him it becomes ambiguous because here's a guy who's far less culpable than someone who was a pro when she became a convict that i see them distinctly and i can see where someone that be people that are innocent whistleblowers ok that that would be possible your client obviously doesn't fall into that category but i see that they're talking about two different groups of people that figurine have someone no second about it they may have something to do with that but once they go the next level that the government where they're charged and they're convicted of a felony you're not in the first category anymore yes but was it the intent of congress to put people like karl again he's the lowest of the low he's the guy who's standing out in the tank fire still he still is convicted of getting fifty thousand dollars an overt false over time right that it's over five years so i'm just sort of looking at it and around tax time when all the taxpayers are paying more taxes than they want to pay and so your guy gets money from this key tom to pay off this fifty thousand dollars restitution tree and so then he just got fifty thousand dollars well but you see it and that i'm see in congress want to get to that i think i don't think that's correct i think you're put your finger on a conflict that arises if you have this interpretation that it applies to someone like karl and it's a conflict the go right to you know the government on the one hand the government is charged with the prosecutors are charged with affecting the purpose of the act which is to encourage whistleblowers to come forward so they are supposed to bring these people forward they're supposed to protect them from retaliation and give them a reward for doing so on the other hand if you take this interpretation and it can apply to someone like coral all that's ever one point five million and it may be now what if what if that was how much money that he got and he was convicted of a felony and it was for one point five million is your argument still the same if he is a low level person like he has if he's not if  say low level mid level high level no i agree it doesn't but back to my point isn't there a conflict of interest that sort of created in the government think the government is trying to save money that the legislature would have to consider if it because the congress can easily put in exceptions saying if they're a low level employee this doesn't apply that i i understand i'm just pointing out that i see level conflict here between the application of the statute as it has been applied to mr schroeder and the purposes of the act because now mr schroeder unfortunately was the poster boy for whistleblowers that at hanford there's a somewhat perfect analogy to charging drug rooms in the criminal context it's very often the case that the best deal is available to the person at the top of the pyramid because they can give you every body down to the bottom where as the individual who's out on the street selling drugs doesn't have a whole lot to offer and perhaps doesn't have the same negotiating room the the problem is in the wording of the statute i do have sort of a follow up question dear is this a case where your client came forward to the government and offered them information and they conduct investigation and determined that what he told them was  accurate i can give you some of the background but again i have been shielded i had to i'm not privy to the government's investigation so i do not know whether they think what he told them is accurate or not they've never told me they've never come to me and said schroeder was being investigated for this the government was investigating and the reason he stepped forward and went to the end of the law inspector general's office was that four of his buddies have been fired from his perspective he's going this is company policy my my supervisors are you know signed off on these things my supervisors are leaving early he was outraged and so he went to them it turned out that he was under investigation the time they didn't they they admit they did not have it please the court rubber cam in china representing the united states i think the the argument that we just heard the straits basic problem here you have a very explicit clear statute on the other hand you have some strong disagreement with some of the policy that the statue let me ask you guess has the government allowing convicted felons to get money under people who had great complicity there was evidence of their complicity and the court was exercising discretion there as to the amount that could be recovered w exercising discretion or the government with well the discretion the court the statute you know those are the two parts that mr schmidt said were intention there is that first part that says that for somebody who is central to the scheme then the statutory amounts are not required the court has discretion to make adjustments and so in those cases that he's citing those that kind of the that was what was involved there that was the kind of adjustment that was being made but there is no authority that we're aware of and which somebody was actually convicted with would get any kind of share was mr schroeder represented by counsel when he spilled the beans my understanding is that he's was represented by counsel both in the criminal side and  precisely i think that mr schmidt may be in a better position to answer that but i know he was represented by precisely when that took took effect i'm not sure you don't know if he was within his intent if you look at that little excerpt he just said if somebody is convicted they get zero and there was no nuance there was no shading it's unfortunate that we don't have more  go on by way of committee reports cetera but if you look at what he said it's very clear very it's very emphatic and i think in terms of the exercise of discretion  certainly and we pointed that out in our brief the prosecutors make judgments as to how to proceed i mean they have these tools and they look at the circumstances and they  d so that's where the play in the joints comes and it comes in in the dealing with the prosecutor but once you have a conviction then the statute  language the courts drawing distinctions where one provision has may and shall in the same provision and the court saying now use discretionary shell who brought the a thematic to the attention of the inspector general no your honor there was an anonymous tip if you will that triggered this whole thing now how much how  i don't know but that's what triggered it not and not mr schroeder thank so when you look at the all of the decisions the eighth and six circuit talking about the provision is mandatory the legislative history the all the commentators we have unanimity of the result despite the fact that the one could debate whether  question mr schroeder when he initially went to the inspector general on his own initiative and spent the three hours with her explaining things he was not represented by counsel but he went on his own he went voluntarily  he was outraged that this was happening when it was company policy but you don't disagree with that counsel for the government that he was not the original source yes i mean there are i agree that there are i don't dispute that there was a anonymous tip but at that point they were looking out for five people mr schroeder was one of them they said they didn't and they were closing down the investigation if we got to go back and do an examination of the record we find out they were shutting it down it's only because of mr schroeder that it blossoms into four or five hundred people i actually think it's many more than that and the upper level managers they thought the government thought this is this is low guys like karl they didn't find out until later thanks to him that it's the upper level managers getting their six figure bonuses by putting this policy on the planes were any of them churched ah i don't think they have and i know that some supervisors have been charged i know there's been some trials out there and there's been some acquittals it's ok not surprising them thank you