thank you your honor kathleen delaney and along with my co counsel christopher state we represent quinn heath who is the plaintiff appellant when his father rodney he was a longtime indianapolis firefighter and he blew the whistle on his employers false claims for grant money from the department of homeland security while the government actively investigated the sealed false claims act case when he and associated other of his fathers attempted to follow in his father's footsteps by participating in a lengthy hiring process to become a firefighter on the very same day that the indianapolis fire department instructed several employees to appear for interviews with government investigators in rodney's false claims act case  blacklisted when he and violated merit law by making too many discretionary picks to pass over quinn he thought on the rain tiring list the district court improperly excluded prospect of employees like when he from protection against blacklisting when interpreting the false claims act anti retaliation provision by adding a temporal limits to be ambiguous term employee the court erred warranting reversal first employee is an ambiguous term in the false claims act the statute does not define an employee but the us supreme court in the robinson case held the term employee to be ambiguous in the type in the title seven context and there are many cases that say that title seven is the gold standard when interpreting employment discrimination statutes the district court appears to assume that employee is ambiguous by resorting to the both statutes that govern the employment relationship and they hinge upon just  they the closest analogy would be the star beings oxley act and that language aligns almost identically with the false claims act and we do have sarbanes oxley case law saying that prospect of employees are covered in the the closest because of the language if you line up and compare the statutory language they line up and there are cases that that have already held if that's the case  particular halliburton vs the department of labor which is a fifth circuit case from two thousand and fourteen says that the sarbanes oxley act is comparable to the false claims act on the anti retaliation language pacifically referring to  when that happens all the time well it also happens were we were all and say look it employed means employee doesn't mean somebody you're going to be an employee and in congress you go back and change well in this context  some amendments to the false claims act make it clear that the purpose of the statute is to encourage and protect whistle blowing and the senate report that we cited in our brief makes clear that amendments were designed to broaden coverage for whistleblowers to make it all inclusive and the report specifically says that temporary blacklisted or just charge workers should be considered employees for purposes of this act and we know from th court's decision in our nation versus national labor relations board that blacklisting implies discrimination against a job applicant so where the senate report talks about blacklisting you know blacklisting connotes hiring decision that combined with this court's decision and fans low where there's a precedent for giving broad interpretation to the false claims act along with other case law from this court including george versus junior achievement and flowers versus columbia college where the court has held that when dealing with ambiguous anti retaliation provisions the courts are supposed to resolve those ambiguity in favor of the employees not the employer which is what so when we look at analogous statutes when we look at the robinson decision we believe that the only reading that makes sense is for employers to cover all kinds of employees current former prospect of and former employees who are seeking rehire which was the case in the pocket decision from wisconsin the court here instead of giving a broad interpretation to the word imposed a temporal limit when one does not appear in the statutory language the district court essentially added the word current before employee but many cases starting with robinson have found that employee includes former employees and in fact the district court's decision in this case seemingly acknowledges that former employees are protected there is no principle basis to extend protection to current employees and former employees and former employees seeking rehire but not to prospect of employees employers can retaliate and discourage reporting a false claims from all types of employees and excluding prospect of employees from coverage incentivizes employers to weed out people just like when he by not hiring them in the first place they avoid false claims down the road and then this is just an extraordinary support for the false claims that school just by coincidence are associated with somebody who did well it in the typical case what would happen are the more common scenario would be someone makes a false claim against an employer and they get fired for it and then they're looking for their next job and the second employer declines to hire them because they have historically made a false claim that would be the more common scenario but employer wasn't involved in the subsequent hiring decision then it would be only the second but in the two thousand and nine amendments to the statute congress specifically noted that the associated other protections are designed to include it to deter and penalize indirect retaliation by for example firing a spouse or a child of the person who blew the whistle so children are clearly associated others and in this context it's even more on point because the indianapolis fire department encourages legacy hires in the discretionary collections that the chief has available to him he gives credit to legacy candidates meaning the son or daughter of an existing firefighter so here what better way to retaliate against rodney he who of the deputy chief referred to as a poacher shit stirrer then making sure his son doesn't get a job and he went thirteen people below in the rank order in order to hire people other than clean and when you look at the timeline here in the morning at about eleven am on september sixteenth the deputy chief the same person  referred to rodney heath as a shit stirrer sends out an email telling several firefighters that they need to go be interviewed by the department of homeland security in the false claims investigation happy in chief malone on that email the chief of the department less than three hours later when he gets an e mail saying he's not been hired even though he was ranked well and that human resources manager told rodney heath months earlier that his son was a quote shoe in for the next yet they each had a check mark to check marks by their name and quinn had only one iraqi from the loan is the one who decided who got what check marks right but is there any i mean there's a serious causation problem here right right right so he went all the way down to rank number one hundred sixty one to fill that class using more discretionary selections than the statute allowed him to use under your theory good is there any way that quinn he would have been hired on the automatic well yes he could have because the chief was only allowed to select seven discretionary picks instead he selected thirteen and several of the discretionary picks were ranked higher than quinn on the list and the reason is because there were two lists one list had when at number eighty two another had him at seventy eight this may be where the counting gets confusing look because the human resources manager is the keeper of the list and responsible for updating it she printed it out handed it to chief malone and then he marked it up and made his notes on it judgment the court should have found should have used number seventy eight considering the facts in our favor instead she used the number eighty two and chief malone at his deposition literally made a math error on the record trying to tell me how he got where he got in his picks and less you have any further follow ups i'd like to reserve the balance of my time  and may please the court there are two possible ways to decide this appeal either by deciding the statutory interpretation question that the district court decided or by deciding the cause each question the district court's judgment should be affirmed under either approach but i would submit that the ca's ation issue provides the most straightforward way to resolve the appeal because that issue turns on indisputable evidence and simple objective that on that causation question reading from quinn heath's own appellants bridge quote heats ranking was sixty four sixty five seventy eight or eighty two that's it page thirty we explain in our brief why except i'm giving him the benefit of the doubt and taking that best possible ranking of sixty four it was mathematically impossible for quinn to be an automatic selection and either the first class or the second was now in reply and begin here today at argument that quinn is now suggesting that perhaps and i think this is the first time he's made the suggestion that perhaps his ranking was actually even better than sixty four because if you peg the math to this list where he was initially rank seventy eight instead of the lesser he was going to be two he would be four spots higher there are two critical problems with that i think it's important to make sure the record is clear the first is that the math still doesn't work moving him up for additional spots could not have gotten him into the first class where he was at least forty spots too low and moving him up for additional spot couldn't have gotten him into second class where he was at least five spots to the second problem with quinn's reliance on the list where he's ranked seventy eight is that the record shows it's not the final list for much higher decisions were made that list is in the record at page five hundred seventy and if you look at that list you'll see in column seven there are scores ranked those are the performance scores based on performance pieces of the application process things like a written exam and and based on those performance scores only he is rank seventy eighth with a score of eighty four point seven but what quinn doesn't talk about when he talks about this list is undisputed testimony in the record of pages three sixty five to three sixty seven and the marital which makes clear that there are additional factors in addition to the mormons they can get candidates bonus points under the marital there are four characteristics that you are required to give points for and of the marital this is separate and apart from the five discretionary markers acquired things like being the child of a police officer or a firefighter who died in the line of duty being an active duty military veteran things of that nature quinn didn't get any points for those but if you look at the list at page five seventy four applicants though those are separate and apart from the markers the markers are department policy for the discretion of the twenty percent discretion selection these are merit law required preferences that actually get factored into the scores to make the rank he might have because asian argued at the department exhausted those two marker candidates and then got into one marker candidates like quinn who was a legacy and then still passed him over the problem is that apartment filled both classes and i think there were over a dozen to marker wise policy is a side point it's undisputed the department does in fact follow that policy and there are other candidates on the list who had some college who don't get credit for a college degree so turning from the cause ation question to the statutory question the city isn't asking the court to add any language to section thirty seven dash thirty eight and it's not asking the court to read a single word in that statute in a manner that's inconsistent with any english language definition or simply asking to read slowly contract or agent to mean what they say when congress added anti retaliation protections to the false claims act it had two considerations in mind two competing considerations on the one hand congress definitely was intending to protect whistleblowers and to encourage folks to report information to the government on the other hand both congress and the department of justice were concerned that an expanded false claims act would both invite and prolong their a list litigation and as this court explained in some detail in the neal against honeywell case congress didn't completely abandon one of those competing concerns in favor of the other section thirty seven dash thirty six and thirty seven thirty eight is a compromise between them represents so what do you think about former employees i think that's a much closer as to whether the word employee is ambiguous as to former employees i think that's a much closer question thinking about the robinson analysis because the question they're both current and former think fall within any accepted definition of the word employee the question is simply what timeline congress is talking about job applicants are different in kind they've never been employees have never had those bundle of rights that attach to being employees and i don't think it's in your in fact in a different case the court were facing the question as to whether this word employee in this context is ambiguous as to former employees i don't necessarily think that the hockey decision is incorrect that finding that a former employee who engaged in protective conduct while he ery then leaves one with one reason or another six employment with employee employer b employer eight years of bad referral motivated by retaliatory intent does that person have a claim against one  willing to go in protecting whistleblowers and what if what congress says is employees contractors and agency says nothing about job applicants blacklisted workers and says nothing about discrimination in regard to hire like for instance  described oh we would provide a claim against the former employer for blacklisting its employee but not for somebody who reads and heeds the blacklist right but i think in this situation that might be the effect now when one is what you're describing and i think that could be the effect yes and again it comes back to these balance and concerns congress that i don't think it's surprising that congress chose to draw the line at employees because as the tenth circuit said in the mcbride case it is employees who are uniquely suited both to discover and root out fraud that's just not the case the job outlook and so when congress is trying to decide with the balances again it's concern about meritless litigation it's also concerned about protecting whistleblowers that balance different with respect to employees who are in that unique position where for others in employment like relationships contra it's then it is for job applicants and to judge hamilton's point during the miscellanies presentation certainly there could be some idiosyncratic instances where you would have an applicant who might have some unique knowledge but i think congress made the decision that it wasn't willing to sort of elevate that interest at the expense of the other when you might have a few marginal cases they get covered as opposed to candidly the language is similar in some ways the united states supreme court talks about the prohibited forms of discrimination being similar in the lawson case if anything though i think that actually cuts in our favor it talks about those sorts of prohibited forms of discrimination being commonly understood as forms of discrimination one would engage in against its own employees and so you know i think the court can look to to parallel session schemes of course we cite quite a few where  congress intended to protect job applicants it explicitly said so that's the case in title seven as well the statute in the robinson case talks about we know robinson wasn't talking about job applicants when it said the employee is ambiguous because title seven explicitly prote and robinson makes very clear that he job applicant is not just a temporally distinct class of them it's something different and that really takes me to the big sort of practical big picture problem i think with with quinn's argument to accept quinn's reading we would have to believe that a congress bent on protecting job that it's decided that the way to do that was to pass a statute that says nothing about job applicants nothing about blacklisted workers the provides remedies that are most naturally read as applying to current or former employees but not job applicants and that doesn't prohibit discrimination in regard to higher let congress has another statutes and that instead congress decided the best way to protect job applicants was with a and ambiguous reference to blacklisting workers in one line of a thirty or forty page senate committee report there is no reference to that works a job applicants anywhere else in the legislative record nowhere in the florida bates nowhere in the sponsor statements i would submit to the court that congress does not speak in such coded language and that the better way to think about this is that if congress in fact intended to protect job applicants it would have done what it has done in scores of other in terre television provisions that it would have protected both employees on one hand and job applicants on the other explicitly in the language and statu first i'd like to point out that rodney he's claim was not meritless in fact it survives summary judgment and then the fire department settled the case paying significant dollars to settle that falls claims act case so we're not here about em second causation was not decided by the district court it is the district court's function to weigh facts and determine whether there is a genuine issue for trial and that has not been done yet on the causation element of quinn's claim we believe there are genuine issues of material fact about which list should have been used about why the chief can violate merit law in over select discretionary picks about why that same chief used his own discretion to decide that quinn got only one check mark instead of two even though he had sixty hours of college sixty six hours of college credit under his belt while several other candidates got a check mark for having only sixty hours of college credit under their belt and there's nothing in the regulations that specify that an associate's degree for sixty credit hours is worth more than sixty well now let's talk about degrees of business a degrees or two say our age it doesn't say anywhere this is simply the chief's discretion as to who he he literally hand wrote a check mark next to people's names and was no the merit law simply says eighty twenty eighty percent of the class gets picked through the hard numbers twenty percent through the discretion where the problem comes in is the chief gets to decide who gets the check marks to get to the two check marks for favored treatment but there's a standard cold college they consider education prior  experience in firefighting legacy minority and female status those are the factors that are considered and also there is a genuine issue of material fact about whether quinn should have been an automatic selection for the second class and that they passed over him by over selecting on the discretionary side so this court should not decide this case on cause asian because it wasn't decided below in terms of the coverage of former employees and not prospected employees there's no principle basis to distinguish between those two categories of people for purposes of protection against retaliation and the sarbanes oxley act the language win up on all fours with our statute and the department of labor has issued regulations under sarbanes oxley which to state that it covers prospect of employees so the sarbanes oxley act does provide us with a roadmap for the same kind of statutory interpretation that we're arguing for here and if you look at the statute the false claims act prohibits first of all provide well it gets down to part of the problem and basically is true that we be doing this should congress do it well the statute uses the most broad language you possibly could when it says that employees are entitled to all relief necessary to make that employee poll and it prohibit but the fact is that your client never was an employee right he was he was nine months in the hiring process where he took all kinds of tests and got all kinds of scores and passed an interview and was ranked ahead of thirteen people who got selected whose fathers weren't this very thing issue has not been decided yet by a circuit court of appeals but the tenth circuit has oral arguments set in the patz case on march twenty second of this year and it presents this very similar issue about the interpretation of whether the false claims act the state's fifth circuit tenth yes so we would urge that the court reversed the district court's decision and remained for further proceedings so that mr heath can