attempted to distinguish the case in this district that's most on point here feldman case and it totally failed to do so the court stated that the case is the  h because among other things the government at that specific examples of the alleged false claims that a complaint now and in the feldman case the year the government attached their complaint three  c m s reports which are the quarterly reports that the that are filed by the state of new york for medicaid benefits that this form shows is that hundreds of millions of dollars were spent refuse failed to recertify annually a thousand people the same a thousand people refused to recertify them for medicaid and and they would claim make claims for those benefits and never even stop it until they were told to do it by the state of new york that's what the emotional and fear simply the year doing it over the course of ten years and not even this covering conduct by the city and that's what the feldman who helped also the the court also failed to  they where there were eight to continue benefits granted and i've never conducted a hearing you're hearing some of them yes i had hearings regarding  snap and federal assistance and public assistance benefits where the where rick many many year it's where the bill the benefits recipients were granted aid to continue and you would expect that this and when the when they lost the hearings this city was required to recoup them now it is true that i was not i know that the city failed to do that because three hundred dollars us fair hearing fair hearings conducted an recoupment of benefits where there should have been tens if not hundreds of thousands so and and the courts good morning your honour's a leg from well more hail for the city of new york the judgment in this case can be an affirmed on two straightforward grounds first the district court found that as to the a to continue allegations in the second amendment amended complaint they fall far short of satisfying nine be a fraud a fraudulent scheme he hasn't even cited the relevant prohibitions or the statutory thresholds beyond which recruitment is or below which recruitment is not required and  required for the small sums but since he's alleging there should have been tens of thousands somewhere in there he says there should have been more than three hundred five hundred that's a reasonable  assume that a reasonable inference that there should have been more going on and three on it under the false claims act more is required with respect to that that's a rather rather large inference and we need to know something more about the circumstances that not only of the program but also the circumstances in which recruitment may or may not happen for example mr tessler as as judge droney points out is that it was an l j who was focused on one part of the of the process his allegation stretched broadly before he ever sat in that chair as the district opinion points out and then continue afterwards and he doesn't speak to or describe in any significant way what the policies were what  the fraud scheme was he essentially just says that i think that there should have been more there and there should have been more recruitments but he doesn't give us any details even when he points to a database he doesn't tell us anything about that database how would  two percent of the thresholds were exceeded those those statistics or any statistics of that kind or not are not actually asserted in the in the amended complaint in this second amended complaint as far as i know and because we're at the threshold twenty six stage there hasn't been a full investigation into what all of this to statistics may be and so what we have are his allegations without more but we don't we don't really know anything in a concrete way about any fraud that's  happening and i think it's significant to point out that that mr tessler specifically with respect to his allegations about the fraud he's really focused on a very narrow period and it's not a small defect in his pleading that what used to be the successor to the food stamp program and then the public assistance as it were the ten of program and he doesn't even rightly explain as as as we do in our brief that as that those benefits those are provided through a block grant that goes to the it goes to the state the state the city administers it in conjunction with this state and there there is that he points to no federal rule that actually requires recruitment in those scenarios he cites in a and out dated circular with respect to the earlier in the predecessor program and so while we don't have those statistics at this stage what we know is that there are fatal defects in his pleading as the as the lower court found  and if you have a situation maybe it's where the federal government's providing money and then later on there's now a geisha they failed to comply with getting recruitment when they should the federal government original claim should not have been paid because it was wrong and then then the city doesn't do it does that where's the claim that this is this is and is that is not possible claim is that one of those strange false claims that claims that's not a direct claim but is still actionable in certain circumstances it may be actionable if there were a lot more details alleged and provided for example we would need to connect the fraudulent scheme to an actual stream of money or where that payment would happen the temporal sequence is important in this column he doesn't he doesn't need recertify we certify that we've done everything to get this money back he doesn't need that kind of thing the problem is there's a payment made and then all the problems later when you find out that it should have been made and i don't know how this scheme works is there like set off this is the city supposed to say don't give us this amount of money because you don't know is this i don't understand how this works right and i think that we're having this conversation is in part a reflection of the deficiency of the pleading because case we are supposed to connect the dots to some degree we're supposed to understand essentially what we have here is a claim of noncompliance and then we don't have any of those facts about what happens after what the stream of payment is what is the mechanism through which it would be collected who collects it who collects it because the city is administering the program but it's not it's not the city in in these circumstances who's making the claim and so the fact is there there is under the federal scheme some way presumably that those mon could come back and that the accounts could be made right but in a false claims that case you can't simply file and have a fishing expedition as to what may happen in programs you need to have a allegation a clear allegation as to what the fraudulent scheme was and then to connect it with block grant situation right in that situation them the money is running and it's the money through the medicaid savings program or is used as an offset to the to the medicare benefit or or is applied in  service of medicaid benefits moving for a moment since we were discussing the medicaid savings plan program in that context we certainly don't have any factual basis which gives rise to a strong inference of intent what we have here and what the lower described is essentially a set at one just at one point in time there was identified in the e mail makes it clear a group ten one thousand and sixty i believe is the number but a particular group of people that had not had determinations made as the allegation goes that was quickly discussed and corrected there is no there is no fraud alleged there is no fraud pointed to there's no reasonable fact from which we could infer fraud in that context you have to say when they're getting these medicaid medicaid money we've certified we've recertify these people there there is a there is a form of the city does have to determine eligibility so it has through the through the way that the program works and in collaboration with the state this this city does certify eligibility that that's that's correct but but the point here is that it that this was described as a mistake and we have no other facts that point to anything beyond that there are no other facts alleged with respect to that  moving very quickly to a potential alternative ground for this court so we have with respect to the a t c we the complaint is fatally deficient and wanting in terms of the fraudulent scheme the factual details that there and after escobar i think it's fair to say that there is also the complaint also suffers from difficulties with respect to materiality it's clear that the that the standard for materiality is a high standard in that the the court the supreme court tells us that it's  r standard after escobar and what is required is that mr tessler that the relator show likely or an actual effect on the behavior of the government in paying claims but also that the city knew that it would have such an effect we are a long way away from any allegation in the complaint that we could do of those things and in closing with my my final moments here i'd like to say that this court has considered false claims act issues and recent cases on the on the one hand judge judge droney was on the lot of spaniel judge chin respectfully was on the fabulous panel i think this case can be resolved by seeing the difference in those two cases and putting them together what those two cases tell us when read together is that pleading matters where you plead with details where you have specifics when you speak about the fraud as in the fabulous case and you have details about specific instruction to commit fraud supervisors giving red lines to falsif documents that level of detail puts you over the hump in contrast in law office where you have a circumstance where where the allegations are simply that there was noncompliance without the requisite nexus without the dots connected the complaint fails  if if the if the benefit recipient loses a hearing within two months the city must issue a notice in most cases the majority of the cases where the threshold is over the five hundred dollars the city must issue a notice of three years that i was there i did not see any of those cases i would i would have seen the thousand from my fellow judges and some five and some from me there should have been thousands of hearing what are the reasonably infer from the government celebration of the city the submission of false claims the big picture here is that the city has refused to recoup benefits for the last thirteen years and that the city for ten