thank you your honor may please the court my name is brian brazil and i am here representing nebraska beef limited who is the appellant in this case i know in reviewing and preparing for today's argument that our briefing did not specifically set forth the jurisdictional statement for this court although we did address the court below and we would agree with the government's statement that jurisdiction is proper here today under twelve ninety one and the standard of review that this court will apply on this matter is going to be and i think the parties are in agreement on that point as well your honor is the fundamental issue to be decided in this matter is whether or not having reasonable cause to believe something occurred is the same as a finding that something did in fact occur kinsler reap there's a sense to me in which this is seems like we may have a problem with our terminology and that in the terms and make sure that we're all speaking the same that when an announcement comes out made generally about something that the agencies found isn't that a different usage than the two might conclude i think in point of fact those two things are certainly different in a practical sense in this situation i don't know that there is any difference and the importance of that analysis when you talk about the terminology is what the parties agreed to in the settlement agreement that underlies this dispute so where in the settlement agreement is there a promise on the behalf of the government they did would not say what it believed it had done prior to reaching an agreement well in fact the agreement specified that the government did agree that it could say what it believed had happened but to take a belief that something happened and turn it into a finding that it did happen are two different things and that's the crux of the complaint being made here on this appeal why is that the issue in the case i mean what for bid them from saying that they made that finding their agreement that they had reasonable cause to believe that a violation occurred but those why are those two things inconsistent because cause to believe something occurred and a finding that it did occur no understand why those might be different but why is the government saying we had reasonable cause to believe different from them saying and we also found that because the the very nature of the settlement agreement was that there was no finding that anything actually did happen no finding by a court by anyone that's what the government agreed to their desire to say that well it says there's no admission of liability but where does it say the government never found that you did something well it's it's not in the four corners of the settlement agreement so four corners of the settlement agreement simply state that the office of special counsel first acknowledges that the respondent nebraska beef cooperated with the investigation and then importantly it says the office of special counsel concluded based upon its investigation that there is reasonable cause to believe that respondent used documentary practices based on citizenship status in violation of the act the very next pro proposition is that nebraska that that's the case so to extrapolate from that that we found that it did in five fact happen and then we're going to go announce that to the world and the news media outlets go then and report that that's fundamental difference that's not what the that's not what nebraska beef agreed to in the four corners of the docket well how would that how would that create a defense to your obligation to to pay a fine because it was a material breach of the of the agreement  the government failed in the government then go back and reinstitute its prosecution if it chose to and there were no other statutory limitation defenses or things of that nature yeah i think it could now you know there might be other defenses an argument to that but if it chose to reinstate that because the deal fell through the deal fell through there's no settlement agreement that's that's our view of it there's no settlement agreement because they materially breached but there's nothing in the agreement that forbade them from announcing their characterization of the result let's go i would agree that there is actually something in the settlement agreement that specifically allows them to inform the public and educate the public as to this the existence of the settlement agreement i disagree respectfully  are allowed to characterize that settlement agreement as they see fit they must accurately set characterize a settlement agreement for example simply because they're authorized how is it material that it's sufficient to create an excuse for or a justification for nonpayment it's material because the company had the public told that they in fact did something that didn't that they believe did not occur and that was material to the company and i think materiality is an issue this was decided on some cross most companies on the table or with the company paid more or less based on that characterization would the company pay more or less what its fine be greater or less depending upon the government characterization well our position is that the the the the fine would be zero because they materially breeched then if there was additional proceedings that occurred afterwards the company and the government could evaluate that i guess what i'm trying that in the you know are fully asked but i guess what i'm was searching for is something that gives some substance to what it is you're saying you did you suffered because of the the the government announcement in in the way it did i think there are a few things that the company had detrimental outcomes to the company that it didn't bargain for in the settlement agreement the first and foremost is an announcement by a government agency that nebraska beef did in fact do something that it was found quote unquote that it did something that carries with it a stigma that is publicized throughout the country so it's really reputational harm is what you don't have absolutely absolutely and that's reputational harm that the company didn't bargain for in the agreement there are other agreements that the government has put in the appendix but how is that reputational harm different than when any corporate entity or even individual has charges filed against so government entity well i think there are several ways your honor first depending on the nature of a charge that could be filed against a perk particular person or entity those may or may not be publicized in this case there was no public informative communication that an investigation was ongoing the first announcement that was made publicly was the announcement of the settlement agreement that could rightfully inform them that they conducted  inform the public that they conducted an investigation prior prior to the announcement of the settlement there had been absolutely no public disclosure of an investigation not that i'm aware of i don't even think there's a protocol for the officer special counsel to make such an investigated  announcement that could be different in other circumstances and settings but in this particular circumstance this was the first announcement to the public the agency scuse me the office of special  counsel bargained for the right to inform the public of the terms of the settlement agreement and educate the public about the the settlement agreement there's no issue about that but they can't for example go out and misrepresent what that agreement said and there is nothing in anything remain i don't think they said the agreement i don't think they said nebraska beef agrees that the government filed and i agree with your honor so they didn't misrepresent the agreement what they did is they supplement it they added additional views of the government that were not set forth in the agreement is that really a better characterization of what they did i think depend i think from the perspective of the person about which it was said i think it was a misrepresentation i don't quarrel with the court's view of it i mean just concerned whether the company needed to button that down in the agreement and say that the government won't make any public statement other than one well set forth in the agreement or something like that i mean all that all the company bargained for was allowing the special counsel to talk about the agreement but that leaves open the question what opportunity did the government have preexisting to talk about the whole matter and if you didn't limit them to something where they could say yeah and has a really breached i guess that's my question and i think you that point what i would say is inherent in every contract between two parties is the duty of good faith and fair dealing in our view the fact that they announce a finding in clear contravention of what the parties agreed to that does not comport that for example a party to a contract couldn't then go out and say well the company agreed to pay us two million dollars instead of two hundred thousand that's just materially  wrong they don't have the discretion to to just say whatever they want or characterize it however they want they can't go in and disparage the company that i do and i would have given the impression that the court made such a finding or that where that s adjudicatory into two had made such a finding but it seems like they're only saying we had a good basis for making the case well and if that's what they said your honor we wouldn't be here because they said far more than we have a good basis or reasonable cause to have a case they're saying we found that you in fact violated the law but it was on the company and then that just the threshold of what a prosecutor would do in order to avoid being accused of malicious prosecution i don't believe so i don't believe a prosecutor has to make a finding that something did in fact occur to bring a case i think they have to have a reasonable basis to do so they have to they have to believe in it in a criminal context which is this i think is not innocent in a criminal context there's a high bar for a prosecutor to bring a case i would certainly grant that in a civil context you have to have a reasonable good faith basis that there's a that there's a basis for the dispute well that's what the government claims they had that's what they agreed in the settlement agreement that they had is a reasonable cause to believe that a violation occurred that is different than saying it did in fact occur we just settled it to avoid having to pay litigation fees or deal with lawyers or take a risk that a judge might give us a worse deal than we can settlement that's a totally different deal to say we had a reasonable reason a cause to believe something happened in the other party denies that they did anything wrong indicates that there's dispute about whether in fact there was a bad or illegal act to say we've already found the illegal act occurred we're just going to settle this is a far different message and that's why it's material to the to the company and that's why within three days or two days of the announcement they mediately wrote a letter to the government and said hey you broke the agreement you breached the agreement when you said that we felt that you found that we did something wrong when in fact there had been no evidence provided to the company that there there had been any violation how is this just before this court i mean i mean what you agreed to pay two obligations and then we counter sued the government's under the little tucker act also seeking declaratory relief there across motions for summary judgment our view being that it's axiomatic that saying you found in fact somebody violated the law versus having reasonable cause to believe that there was a violation of the law is fundamentally different and as a matter of law the court can hold that that was a material breach if you think w company it was free to say there wasn't even reasonable cause to believe that we did anything wrong for the company to make a counter statement i think what they bought was whether it was counter or just on their own initiative to put out a statement and say we deny we did anything wrong in fact we don't think there was even reasonable cause to believe that anything wrong and we think the government was out to lunch on this but we settled it well i think your honor what the company did was deny any liability which is a broader statement we do not at the narrower it's narrower you could be you could have reasonable cause to believe but still not have sufficient proof that you right and to say that we didn't do anything your honour's then that that was you could say we don't think there was reasonable cause because we didn't in fact do anything we deny all liability we deny this happened but we we don't know we don't want to hire lawyers to to fight this thing so we'll pay you two hundred thousand and we'll all go or separate ways we won't swe won't spend time arguing about this in the media later because the the duties and obligations are set you believe we did something three subsidiary questions there that nebraska beef has to show first they have to show that there was some sort of duty second that there was some breach and third that the breach was material in our view they can't show any of these three elements a first if i can turn to duty first there's just nothing in the agreement that restricts what either party can say about the agreement the united states has the right to educate the public about its enforcement activities as a deems appropriate and if a private party like nebraska beef wants to restrict that ability they have to negotiate for a specific an express explicit term in the agreement that would do that then i would the government do this why would they reach this agreement then go out and make a stronger statement about the company's culpability your honor press releases not a stronger statement than the settlement agreement what the press release says and this is misrepresented throughout nebraska beef briefs as well as here today we didn't say that nebraska our investigation found that nebraska b violated the law the press release doesn't say that what the pressley says is that the department's investigation found that the company required non u s citizens but not similarly situated u s citizens to present specific documentary proof of immigration status there is nothing in there about whether or not nebraska before violated the law we didn't say that a court had found that we didn't say that we found that and we didn't say that nebraska beef admitted that well the second sentence says the i an asiana discrimination prove it isn't prohibits what you just said that you found them to be doing so i don't understand what you mean when you say we didn't say they violated neither your honor so we said that we found this fact and we said that this is what the law requires from that you could conclude that there is some possible that there is a possibility that they violated the law where you can't conclude is that there was some sort of judicial determination that they had biological wrong with that but i don't know and for you to say we never said they violated the law that's that's your first position and you have to consider your credibility when you make that argument why didn't you just say what was in the contract then instead of what you did say if i don't understand what yours what your argument is here now your honor so the what the contract says is that we had reasonable cause to believe that they violated the statute so that's the legal standard from the statute that gives us authority to bring a loss if you did a press release said that we found that they did violate to statute is that you have reasonable cause to believe that they may have no idea what the presley says is that we found this underlying fact that they required different documents for non citizens and citizens and that's the underpinning factual finding that the investigation and if the investigation found that so that the investigation has to find out for there to be reasonable cause to believe that they violated the statute it's that they're saying two different things why should i have to find them why doesn't the just have to conclude that there's reasonable cause to believe that they were making these documentary demands your honor that the way that we have reasonable cause to believe it is by conducting an investigation and the investigation finding that they that they did engage in these documentary practices that the press release that of what happened as a matter of fact well as if you say we have reasonable cause to believe that they may have violated this statute but this kind of evidence is hard to put together and present so we're not going to say they violated this statute but we so we've negotiated settlement here is kind of what happened but you went beyond that and you know your honor i don't i don't think first  we negotiated this we are restricted what we're going to say so now we're going to go out and dirty up the company i honestly don't think that there were that this was is and anyway misrepresenting the settlement didn't the company try to bargain for something  you the government rejected what they sought to have included in the agreement yes your honor the government rejected that and said look at our prior press releases to see what we did in our press release so they knew exactly what we said in our  do what was done here yes your honor they have the exact same language and that's in the record the prior press releases so we they asked for an express term that would have created some sort of meeting can first type obligation that would have what them negotiate about the wording of press releases we said no we can't do that look at our prior press releases to see what we do and they signed the agreement anyway without an express train along those lines and now now we they're raising all these questions about whether you know parsing the language of the press release to determine whether it you know it it was what they wanted or what they didn't want but they just didn't negotiate for a term along those lines i read that statute and it's kind of hard to figure out really what it says in all candor and so this it wasn't a slam dunk kind of a violation it would seem to me or found that nebraska be file out of the law or that nebraska beef admitted that it violated the law it doesn't say any of that it doesn't say there's a slam dunk case against nebraska beef that it violated the law what it says is that the department conducted an investigation and that the investigation the result of that investigation was was a finding on the part of the department's investigation the violet along know that they requested different documents of non citizens than of citizens which is a violation of the law well which certainly in our view is a violation of the law but that's not the only what we said is that our investigation found this underlying fact not that our investigation found them liable we said our investigation found this underlying fact and here is the law that would apply to that and that's all that and all of that is true first of all and second it's fully consistent with the settlement agreement that has no provision that restricts what the united states can shown considerable recalcitrance in holding them in contempt of a court order so that happened after the briefing in this case is that nebraska beef moved just stay its obligations pending appeal before the district court the district court rejected that  stay it didn't appeal that state determination and then it continued not to perform any of its specific performance obligations as to the injunctive portions of the settlement agreement until the united states moved for a contempt moved for contempt against nebraska beef and then they started performing in the district court held that they didn't start performing in a timely fashion within the sixty days after the district court's order and so how them in contempt and found that they had shown considerable toward the performance of the obligations under the contract and the court's order i mean this settlement agreement was entered in two thousand and fifteen i believe i believe it's august of two thousand and yet it's august of two thousand and fifteen and here we are in twenty eighteen under that contract so you know we haven't taken the position that they are acting in bad faith but certainly immediately after they say three days after they signed the agreement they refused to perform their obligations until the district court held them in contempt which is when they finally started performing their obligations and so the one issue that i haven't touched on is  the materiality issue i'll just note that any if even if this court concludes that there is some breach of some obligation in the contract that wouldn't there wouldn't be a material breach the essential to be  material breach has to violate some essential purpose of the contract and the a special purpose of the contract here even under nebraska beast characterization of that was to avoid litigation on the united states as potential employment claims without admitting liability  and without a judicial determination of liability they haven't admitted liability there has been no suit brought against them on those employment claims so the purpose even as they characterize it remains fully intact  o what they really seem to be suggesting here is that is that they want to avoid any perception of wrongdoing whatsoever but that's not even how they characterize their purpose in at in their in their own briefing on this issue so if the court doesn't have any i have a question as to the underlying investigation as to what is it that the government thought the company was requesting from these  people your honor that i believe it's specific sort of immigration documents like green cards or work permits that they were requesting from non citizens so you're you're saying the law is that a company who's trying to avoid hiring people that is not supposed to hire can ask a person for a green card to work permit your honor there are specific documents that it can request of of all potential employees and it has to end and it can't request different documents based on whether it perceives somebody to be a non citizen and that's that's a large honor really and this goes back to the one nine hundred eighty six immigration compromise where congress you know that's when it became illegal for employers to hire undocumented or illegal non citizens so what can a company request so there's a specific list of document what are some of the typical documents that can be requested well there's a list of them employ potential employees get to decide on the i believe it's the i nine form but you know it's i believe you can show a passport you can show a driver's license and a social security admit a card there a there's just sort of a list of and then individual employees can choose have the choice of determine determining what they want to present to their putative employer about and then when the employer is required  accept them at face value i am not i'm not to go beyond that and ask for immigration really a green card what it what it cannot do i don't know what it allows what it cannot do is request additional documents based on the citizenship status of its employees whatever the category of documents are that it allows any employee to to produce it that's the category and it can't go out it can't create a different category of documents or require additional documents for non u s citizens than a dead for all employees and that's the that's that's in the statute and that's that's sort of the compromise so the compromise was basically that in addition congress was concerned that once you start prohibiting employers from hiring illegal non citizens then there is in to be discrimination against all non citizens including work eligible non citizens and so congress wanted to avoid that which is the genesis of this statute and one of the parts of the statute is the provision regarding the documents were killed people non citizens have a green card or some sort of a card like that don't they so that they can and they can't ask for that i believe not all work authorized non citizens have green cards there there are categories of work out there as i said that are work authorized but do not have a green card and it's really just getting at you know making it that you can't create different bergen's for non citizens and for set as low citizen when have no reason to have those documents but you're saying even though a non citizen is required to have some extra documentation to work with companies not allowed to ask for it because citizens wouldn't have any reason to get those documents you haven't so there's the limited category of documents and non citizens may have some of those documents such as a driver's license and other other sorts of documents that are on the list so as long as they have the documents that are on the list you can't say hey go give me these additional documents or these different documents that were not on the list that i gave you to start with so as long as they have the documents that are on the lest then they're good to go and they're there can't be sort of a a different request of non citizens and there has been of u s citizen workers with regard to the misrepresentation statement i believe judge collatz and pointed out exactly what i was going to say they're it's not an intention to misrepresent anything the press release is in the record here it's an addendum to our brief it speaks for itself i'll say two other things with regard to the argument i heard the agreement itself restricts what the government can say it's not an accurate statement in our view to say that there is nothing that restricts what they can say in their press release the agreement itself provides the parameter for what was agreed to and that is what can be said what provision restricts what the government can say in our view your honor it's confined to the terms that were agreed to by the parties they can't go in and misrepresent again in our view what the deal was or what the factual basis was the factual basis was that they conducted an investigation they made a determination that they had a reasonable cause to believe that this was  of the law i just wanted to say you were referring to a provision and i'm not your honor i'm talking about the four corners of the agreement in total with regard to the reference to the stuff that's not in the record below i would just note for this your honor and i do not need to go into all of it but obviously we disagree with the court's characterization of what happened every non monetary term of the settlement agreement has been complied with there was an issue with regard to the company's inability to locate a certain number of documents to comply with the obligation that it notify all people who had employed applied for a position that was rectified not in a matter that the court found timely and that was the the provide the list of the documents from which the employee gets to choose once those are presented the company cannot ask for different or further documents thank your honour's thank you counsel court thanks both of you for your presence an argument to the court this morning who take your case under vitamin render decision in due course thank you