kid to a private party litigation cost nor is the united states i came to a defendant who just wants to wrap up the allegations brought against it more quickly the united states here is the named plaintiffs in the suit which is an action to enforce federal law to enforce the anti fraud provisions of false claims act based on the united states own asserted injuries or injuries that the re certain united states suffered in an attempt to enforce federal law in a way that the united states has determined contrary to the public interest and not satyrs yet miss patterson good morning to you aren't there any limits to the government's right to dismiss under the unfettered discretion standard for action because the defendants are great campaign contributors may have court denied that motion we we need to know i think the outer contours of what you are suggesting the d c circuit which of course announced a largely unfettered right to c s did leave open the possibility it did not a time and what might occur or what the court role might be if there were some extraordinary circumstances such as fraud on the court now i don't know if the hypothetical that you outlined would fall within what the d c circuit thought was the type of extraordinary circumstance that might depart from the usual rule that you don't look behind the government's decisions not to enforce not to prosecute and i actually disagree that this court and its just sort of explore the outer limits because what the district court here did bears no resemblance to any any court's standard of review for a united states motion to dismiss of course there's the competing standards set out by the th circuit the sequoia orange case that standard is very deferential in most cases you know the united states notion is going to satisfy either the d c circuit switch standard or the th circuit dismiss to find that it had not satisfy the rational relation test the th circuit used happens last year just like this decision that decision is currently on appeal to the th circuit which heard argument a few months ago and so these are the jurisdiction from the as i understand it the government is asking us here to recognize a brand new category of collateral orders that would be immediately appeal very few for example very compelling cases such as the breach of the attorney client privilege that are not permitted what is so extraordinary about this kind of case that we should  create such a new exception or i have another thought but all explore that after you answer that we think the supreme court has already indicated that this that there is a cloud or order appeal right when the united  was that the direct question was not but we we push back a little bit sort of relegation of the supreme court's observations about the collateral or availability because of course what the united states with the court was deciding in that case was how do you think about the united states party status in a declined key town suit like this one and attended to its holding it drops this footnote it's holding up the united states is not a party for purposes of rule four in the decline he attempts suit it issues this important caveat to say that of course doesn't mean that the united states needs to intervene before it can vindicate on appeal its rights and gives a couple  are just examples and so i don't think that this court would actually be going on much of a limb to simply point to this statement and eisenstein and then of course point to the usual clitoral order doctrines again this is return to where i started this is not as an instance where as in the will be halleck case which of course predates highs and stein the united states wants to just it's a defendant wants to wrap up these charges when the united states is forced to allow a suit like this to go forward and effort to enforce federal law that type of intrusion on the executive branch historic and usually unreviewable praga have to decide how to enforce federal law and the attendant public harms that an ill advised enforcement sue can cause that can't be remediated at the end of the day we're not worried about the ultimate judgment here or flipping liability we're not liable for anything where the and there is no other context in which the united states can be forced to suffer the continuance of an enforcement action indeed in a criminal and a criminal context this court has issued writs of mandamus when district courts have decided contrary to the executive branches determinations that certain charges are certain conduct really does need to be prosecuted in the district court tried to appoint a special prosecutor say no i think these charges there's really something to them and that's a species of what the district court did here course congress created the ability for relator to in a sense stand in the shoes the united states and bring these suits but congress also reserves the united states they sometimes filed under seal i asked because the government has asserted that one possible purpose of the hearing requirement is it to create a public record so is it always the case that a public record is created i don't know the answer is a historical matter as to whether we have ever filed a dismissal motion before the seal period expired and the cases i'm familiar with we we don't buy all that many motions to dismiss ha after when there is a public docket but of course even if we were to file before the seal period and said that there still is a public record it's just that it's it would be for a time under seal and of course the court would still be presiding over the hearing that is required you know the united states has to give notice to the and the court needs to afford a hearing in the d c circuit has explained that the purpose of this is to give the relator a formal process to interact with the government i want to know we we engaged in a very robust course of discussion with the relator scoundrel here but of course there's nothing in the statute that requires us to do that and so the hearing could be a sort of statutory backdrop if the relator felt we were not engaging enough we had not listened to their reasons for wanting to me this is the d c circuit said the hearing could well serve that purpose and just focusing on the text of the can i ask you a question about on that of course point the one thing that seems odd to me  about a hearing for those purposes alone a limited purposes that you just articulated is it's it's odd for congress is it not to require a hearing but then to prohibit the content of that hearing from informing the exercise of judicial review i think i'm going to push back on the basic premise that it that it would be that extraordinary there are a number of statutes where fair enough but in this situation what the hearing what the hearing as a practical matter amounts to is that is the court serving as a convening authority because if the attorney general of the united states files a motion to dismiss and that just by virtue of it being filed and you know swift applies as you as you would have it the hearing is not serving any any purpose with respect to the exercise judicial review because the motion must be granted i mean so it's basically that the court is just a public convening forum again with with reserving my previous answer that i actually don't think it's that's that extraordinary there a nd purpose and this is i think where the d c circuit's reservation of the possibility that if if some extraordinary circumstance came to light the hearing would be the place where it could be surface and sort of looking  exercises of prosecutorial discretion of course courts presume that the government exercises it but you know how does a hearing work in the swift world so for what i mean by that is if if swift is right it seems to me that the attorney general in the hearing would just say on balance the united as chief law enforcement officer i've determined that this case should be dismissed and i'm and i'm under no obligation the seine more i think  k should not go forward but i think you're right that on a do you know just as a pretty those kind of a credential matter of you know professional courtesy or out of a sense of legal obligation i think the former your honor i think as a matter of pure legal obligation as is the case in the criminal prosecution context we're under no obligation to justify our decision to not go forward in the case and it's only if the other side saying hey there's something wrong if they can make a clear showing that we have for example contravened constitutional limits and how we are making these to sit at that point that a court might be within its rights to or to sort of follow up on that that that's very standard in the criminal world and we think that it should carry over to the civil and force that context too and i do want to focus i know we've been talking a lot about the hearing and that that comes from the text of the statute and i want to make sure that we we go through some features of the statute here which is that there are a number of rights reserved to the united states and attendant to almost all of them but notably not seek to lay the statute itself talks about the state under it the court is supposed to use talks about the quote showing the government has to make so and se said all right the court's going to approve it if it finds the settlement is fair reasonable and adequate under all the circumstances there is no language like that and see to similarly in c two c it says there has to be a showing by the government of interference or repetition or harassment in order to restrict the relator separatist persecution and c three even just to intervene in the case late it says that we have to make a showing of good cause similar to exist even even just to extend the seal period there's a standard we have to make good cause shown and so i think that the court needs to take seriously congress's choices to entrench a standard for some things the united states wants to do while it remains notably and the question is whether we might avoid the creation of a new category of appealable collateral words by simply treating the government's motion to dismiss in a case like this it court i i'm not actually i've ever couple of thoughts about that your honor i'm not actually sure we would have any better established root if we were the plaintiffs and we tried to dismiss invoking our rights under oath forty one dollars you'd be intervene or you'd be seeking to intervene to exercise your rights under rule forty nine dollars right and if for some reason the government denied it i'm actually just not sure of the state of the law i haven't been able to find a case that says to the claims that the government might have against the defendant that in fact is that as the standard practice various district courts have actually explained that they didn't think they could do it any other way because of course this is not a case where you are litigating through the end of the case or where the united states has consented to the use relator is proceeding in this particular action so it's we agree that we are and have to be we are prejudiced if we allow or later to go through the entire process we can't come back after the defendants to where we are trying to call the whole thing off the reason that we asked and we specifically asked that it not be with prejudice the united states because if we later find out that there is a different product because of course we don't think that these allegations as stated had a sufficient legal or factual basis we don't want defendants later coming in because of some temporal or at the margin some factual overlap and trying to say that we are barred from from proceeding against newly discovered fraud because of some incidental overlap here so this in fact understand your question along those lines but it also looks like a it could be abused as a the united states is allowed to seek redress for the fraud alleged by relator through an alternate means of course they're often in a strait of means or other remedies available to the government but at that point the relator can seek an alternate and a share of that alternate remedies so if we tried something like your honor is positing we might well have to be faced with an alternate remedy suit nd the united states has no interest in cutting out related is for the process we recover billions of dollars and it would be very shortsighted and if extraordinary things happen where we try to cut a relator out i think they would well have the statutory neck of an alternate remedy to come and complain about that i see that i am almost out of time and happy to answer more questions but i would like to have minutes good morning your honour's let me peace on behalf of the appellee relator as your honour's noted there are two separate issues at issue in this case the st is the jurisdictional issue the nd deals with the standard in the application of the standard to this case but because the case might interfere with an ongoing investigation and the court denies that motion the government may not have mediately appeal is that your suggestion if our understand your question specifically there are provisions in the false claims act that allowed the lower court to stay discovery and to stay a false claims that case if the government shows it could impede the geisha of a different case those facts aren't what we have here and respectfully the eisenstein case did not actually deal with the collateral murder doctrine at all it dealt with the issue of the statute of limitations for appeal and the footnote also makes a difference in the case from the case they discussed in the case we have here they mention in their footnote a case where the dismissal order was granted and the government objected that's not what we have here and that sort of order is conclusive far more conclusive than th order that we have here denying a motion to which falls in line with the collateral world order doctrines prongs the st of which is that it must be a conclusive decision and in this case it's simply that the government does agree that in order to meet the collateral order doctrine it has to satisfy all three prongs not just one not just two but all three the very st one is the conclusiveness of the decision the denial of the motion to dismiss in this case is not conclusive i mean the same thing that could be said about denials of motions to dismiss or for summary judgment on grounds of qualified immunity that is correct your honor and when qualified immunity is at stake it's specifically noted in statutes that specifically noted in cases qualified immunity is not part of the we respectfully disagree your honor because the qualified immunity issue the false claims act is different in the sense that the relator has the authority to bring these cases on behalf of the government in the false claims act has specifically given the relator their own types of rights in pursuing these cases for example with the dept government declines to intervene the relator can continue pursuing the suit with no qualified immunity issues no qualified immunity ingestions but in the qualified immunity i think i mean i may be mishearing but i i think the point is is broader ok just step back from the false claims act for a nd precisely ok forget just forget about the false claims act the reason the reason that qualified immunity is as i understand it allowed to be appealed as a collateral order is not because if you waited until trial and there was a you know an adverse decision for a law enforcement officer that she or he wouldn't be able to appeal at that point in time it's because there's been a conclusive determination on a matter of law they can go up on appeal now and save the time and expense and resources you know that the law enforcement officer would otherwise have to suffer if litigation played out and i think the the united states as i understand their position they're saying look there's a there's pretty substantial executive branch law enforcement parag that is at stake here and that's why it's an to you know what's what's going on here i think that's the argument it's not it and she you know if the government were required to wait until the end of the suit to appeal the denial of the motion to in the context of this case i think the issue that we have here is what the government actually did and what it actually presented to them that the denial of the motion to dismiss wasn't with prejudice they could never bring another motion to di can never discuss this issue again i think that's the difference in the conclusiveness of the lower court's orders here and the issue of qualified immunity here the government had a hold on hold on hold on one of the one of the points that the s supreme court has been clear about in the collateral order case is taken like mohawk etc is they have over and over again instructed don't worry about the individual case before you think about that think about the category of cases that are being sought for purposes of collateral you know the collateral order doctrine so i think the way i take that instruction is that we shouldn't focus on what happened and what didn't happen here we should think about this category of cases and whether they're properly recognized as george hamilton articulated as a new category for purposes of you know the application of the doctrine i think the distinction between this type of cases falls in the fact that the government is a party an interest on the plaintiff side so the qualified immunity typically deals with attorney generals being sued governments being responsible for some sort of legal recourse that they shouldn't be responsible for that's not what we're talking about in the false claims act cases as eisenstein specifically noted the government isn't actually a party to this case until they intervened they were very clear about that and so the party an interest they benefit from the cases ultimately if they're successful and if there is a judgment against the relator the relator is responsible for that judgment really responsible for those costs and responsible for pursuing the litigation now we're not immune  unaware of the fact that the government may have to have some role in the litigation but even at believe eisenstein also noted that the government often is aware of false claims that cases when they don't intervene and they have a minimal role ok finish your thought and then i have a question for you with respect to the qualified immunity i think in the category of cases from the larger standpoint is this is an instance where the government is a defendant the government has some sort of legal right that's going to be at stake case how is it appropriate for a chord for a district court judge and the motion to dismiss for lack of a better investigation the motion the memorandum that the department of justice filed in this case they spent six and a half pages discussing that my client the relator they had exhibits that did not deal with their investigation that did not concern the stated conclusory issues they went to the point to provide evidence about how they disliked the relator but did not provide evidence about why they want to dismiss this case for other reasons and that is what the court had to look at that's what the government chose to file that's the bill they chose to rain and that's what the court looked at this case with that motion those reasons and with respect to reconsider the question i ask your question on this point the question i have is suppose for example that we we agree with you that sequoia orange is is the right path to go down legally do you agree that the that the th circuit at least has said that that what they intended there is for the standard of review review to kind of mirror the constitutional rational basis standard careers that that is what they said ok and if that's the case in keeping with judge rovers observation it why isn't the inquiry here limited to simply the reasons the government has offered to support its dismissal are they facially plausible this sequoia orange standard has two separate proms the st of which is did the government set forth rational reasons the nd though is whether they're related or have provided information that makes that decision seem arbitrary or caprice based on the government's case a hypothetical case the attorney general through through in a usa or u s attorney made a representation that we have taken a hard look at these matters and on balance believe that our law enforcement resources what would the rational basis review look like in a situation like that i think if that was the only thing the court had to look at the if there were no evidence that the decision was arbitrary or capricious and there's nothing that the court has they've it's decision to deny that motion it's different from the case that we had here as i stated that the department of justice started off in their brief for six and a half pages on this personal issue with the relator that's what they chose to write that's how they chose to bring it up with a but they chose to do a lot more than that the government supplied several reasons of her wishing to dismiss in faln little merit in the case  it did not wish to expend the resources on discovery and monitoring the shoot and also policy matter the government found that the also didn't care for the tactics of the related or is really largely i believe irrelevant because it has the government has given you it reasons here respectfully your honor we don't think it's irrelevant because it does provide their st reason for a dismissal and the problem that the district court had in this case with the conclusory stated stated reasons for dismissal concerning merits and litigation costs was that they provide evidence in affidavits about the issues of the relator and then didn't provide any sort of contradicting evidence to support its reasons for dismissal so looking at the facts and the i thought ok this is off on a foot of rational basis review in keeping with orange and then without using these words it seemed to drift the level of in protein and requests for showing that cetera into what we might think of as like a form of intermediate scrutiny and that's that's what i thought is not it's not in keeping with sequoia or nj in the deference of the executive branch that that all these courts have met or what side of this split you pick you know have underscored is important i understand your concern your honor and we are advocating for some sort of the government needs to provide x amount of information it needs to always provide a cost benefit analysis i think in this case what the clerk was looking for was something more than the conclusion the allegation in the original meaning read them but w rational basis fandor and in other contexts we usually ask whether the court can imagine any rational reason for the action other words were not limited to the universe of reasons given by the parties why shouldn't that be the case here is well and if it is ok in the core deny the government's motion in this case where i for one can imagine any number of reasons for the government to decline to you know to  decline could she could you repeat your question i'm not sure i followed specifically i'm not surprised and to be honest with you i'm just saying that we're not limited to the universe of reasons you're not happy with the reasons  i am you're not but we're not you know we're not limited to that to to that universe of reasons i can think of a lot of reasons i think it's important in that case to also look at the context behind the purpose of the five planes actual purpose of having a relator the purpose of giving the relator rights if you look at a lot of senate and house testimony they were concerned that the government there was fraud happening that the government didn't notice or would refuse to prosecute and said that they made it an important point that the relator has rights to continue the case in the event that the government chooses not to and that was the biggest concern for congress under the false claims act is getting taxpayer money back i ask you to explain a little bit about the merits of this case to me and let me just as i understand it this is the alleged kickbacks here in the form of support services for doctors who prescribe the drug in question so if i go to a store and buy a computer in the price includes tech support for two years free no additional charge is that a kickback under your theory in this case there would be no federal federal funds at issue but to sort of make it synonymous this goes beyond the allegations in this case go beyond sort of providing patient information and providing the support services that are provided would have to be provided by doctors anyway they would have to get pre approval for their patients they would have to go through the process the that would happen in the doctor's offices no matter what so it's not some sort of extra thing that these companies are providing it's in lieu of the doctor's own staff providing these things which has a value surely has value i if i if i'm a small business i can hire somebody else to do tech support for a computer system or i can just buy it as part of the original computer system why is why is the difference between those two arrangements potentially criminal under the kickback statute drug manufacturers are not permitted to provide remuneration in order to obtain prescriptions and there's evidence in this case that they actually used this value these support services to promote their drug over others which is a brand name drug cost more for the government that would be the same for my computer hypothetical to say yeah we're going to charge you a little more upfront but you're not going to have to pay monthly maintenance or support  services and in the private context that might be fine with private insurance companies that also might be fine but the thing we're dealing with here is the in tack it back statute where congress is that we don't want drug manufacturers providing things of value in return for provided on maui i would understand that but i don't understand i'm just what i'm getting at is it's not difficult for me to understand why the government might not want to pursue this case in this case because the services are going to have to be provided by the doctors anyway they're retaining value for essentially getting extra staff in their office that's a cost that they now don't have to pay that they would otherwise have to pay because the drug company has provided them that because it isn't clear you though and i guess maybe this is a question for mr patterson's it clear to you that the government agreements are in line with what judge hamilton's asking that both of these forms of you know remuneration or kickbacks within the meaning of the statute in our opinion i don't that was disputed in no small part because of there's a reference in the briefs to some administrative guidance maybe from an inspector general or h h s or something somebody you don't know the answer has respectfully your honor it's not so clear cut whether it is or isn't that the anti kickback statute as broad remuneration is defined as a certain thing of value what we've done is the allegations fall in line with those to our knowledge there is no specific government document that says they can't provide little picking up where we left off the government did say it's notion to dismiss that and inspecting the allegations here it found that the particular practices alleged were appropriate and beneficial and this is part of why it's so troubling both that we were not allowed to dismiss this case and why we might have to go on their theory way to the end is that there are always countervailing public policy concerns the mere provision of educational services to patients taking a drug can be used as a kickback but it can also be structured lawfully and what you had here was for later bringing eleven interrelated keep him suits essentially against an entire industry in a way that the united states considers united states the medicare costs other costs of having people have to come back for office visits every time and the court referred to the category of chaos as being relevant i agree the other reasons that the united states has previously used it see is to is to prevent they possible disclosure of classified information that might take place as a case on hold it's to promote peace within an industry which was one of the reasons the th circuit found  appropriated sequoia orange and here the united states has made a determination that it is not in the interest of the public it that this whole industry be dragged through years of litigation based on practices that the united states has