whether the statute requires which a reality answered yes you call it regardless of what you call it and this is these are factual points so far and i do want to get to the government knowledge inference with  you and what we should do about that because i don't think we have presidential authority within the circuit that is adopted at this point but we have a defendant here who was not submitting a false claim in the sense of a you do have a record that demonstrates that administrator is within the c m s were perfectly aware of this tightly i don't believe i'm sorry on occasion and beyond that there are portions of the record that demonstrate that c m s was concerned there after there is a circuit courts have held that there is a government knowledge in france they have held that it primarily goes to the issue of saying which is one of the elements under the past claims act but other courts have also held it goes to falsity which is another element and then to materiality as well and i don't interior ality i just highlight for the court the supreme court's recent decision in universal health services versus escobar which i think is very much on point here and could provide a key pieces for affirmation of judge but waters opinion as well in universal health services the court which is an implied certification case which is not relevant here but the supreme court in an enemy's decision nevertheless took up the issue of materiality and found that when the government quote regularly pays a particular type of claim in full disp actual knowledge that certain requirements for one were violated and has signaled no change in that position that is strong evidence that the alleged misrepresentation is not material whe judge but daughter indulge the plaintiffs at every turn at every angle these separations at the c m s witnesses that we were ultimately able to take towards the end of that discovery period were hard fought to receive their related products at every turn to get those and put up roadblocks to get them ultimately we were able to get those depositions and i think that they confirmed what the relator had feared that this is not an issue of a false claim being  government this is a purely administrative placeholder type of situation where a system was built and requirements were put out that were aspirational to some extent when it came to the press riper identifier field and by twenty fourteen those are pirates had been met up until that point those apartments were not able to be in that these mini i mean i'm not trying to to put words in your mouth here but i'm asking just as i would ask the other side to to agree or disagree i got the sense in preparing for this argument and spending time with this case and reading various portions of the record what actually happened here a bottom line interpretation of what was really going on is you have a new title that go into effect and things  to be accomplished to make it work and eventually both c m s employees and officials are interested in seeing to it then on a timely basis these whether technically clean or not that developed over time to see that both of those interests were accomplished or accommodated it is that an accurate way of looking at this in your view and of course want to hear from  side i believe that's exactly right judge smith a and i think that is the conclusion that judge but project came to after looking at the entirety of the record and as you may recall from having read his opinion he noted that he read the entirety of the testimony those depositions clearly to hand was exactly what you are ticket in that it was a brand new program the first priority the first and most important priority was making sure that access to prescriptions was not tonight and therefore there were several workarounds that were needed this happen to be one of them everybody was working together to make sure that every body i'm sorry to see everybody everybody see amounts as well as the plan sponsors as well as the pedia so those processing with prescriptions as well as those receiving the p t event at the end of the day in the form of c m s and i think reading those depositions that inference comes across loud and clear that that is what was happening and that they were fully aware of the actions that p b m such as care mark were taking and in fact mr grant testified that he would call having conversations with p b m and plants on service in the two thousand and six time period which is the inception year for medicare part d and told them specifically advise them to go ahead and put in a century dummy identifiers to get their claim processed and through now given the passage of time mr grant obviously could not remember the specifics of this conversations he was honest about that i don't recall which ones i actually spoke to and i think that is that is one of the ways that the relator is trying to take advantage of the situation and try to perpetuate the notion well there was not an actual conversation that anyone can document but the record is absolutely clear that in fact such conversations occurred such guidance was provided to the industry and caremark followed that various points in time and district courts in this circuit have held that there is a government knowledge in france now it is not an automatic defense it is an inference and it most often is held to go to see enter it sometimes however he says in the circuit have determined that if there's no genuine issue of material fact that the knowledge state of mind see enter element whatever it is called can in fact be decided at the summary judgment stage and government knowledge intrinsically because that is the term that has come to be used by the other circuits but he made clear that his finding that the inference had been met with not the end of the inquiry and then he went on to analyze what  knowledge so i believe when judge judge buchalter was reviewing the defendant's knowledge it was in the context of a read your review of c enter the formulation that he laid out based on the other circuits is at page fifty two of his opinion and basically as to the effect when the government knows and approves of the facts underlying an allegedly false claim prior to present meant and inference arises that the claim was not knowingly submitted regardless of whether the claim itself is actually false and i think i think that when you're speaking of government knowledge when the government knows knows what you are doing it's doesn't make sense it's not logical that somehow what the defendant thought at the time they submitted a cla m really matters now that being said i think in the fact this case judge buck rogers analysis on what caremark the defendants in that matter knew and when they knew it is very clear cut and very well supported so on the facts of this case he went through that analysis and made those determinations but they grieve it to the extent the circuit is considering the correct formulation of a government knowledge and friends i think you have correctly articulated what we believe a standard should be should this court decide that it would which is to illuminate a with the other seven circuits of done how do you know what the defendant's knowledge was during the relevant time heard two thousand