traditional litigation norms congress gave the government a binary choice up front it shall either proceed and take over the case or decline in which case the relator shall have the right to conduct the action once a government declines the relator control is exclusive and that's how the supreme court described it the government is not the government is not at all honesty guys are let's let's let's get into the soul of packing right first off would you agree that the position you're advocating is contrary to what we said last year in statute and it wasn't oh well you may say you may see it picked but but my question to you is whether we should give it a lot of weight or whether you think it's a good idea my question to you is it's a position you're taking contrary to what we chiang just last year it is contrary to one sentence in shanghai and is this court said in the supreme court has said questions that are merely lurking in the background not decided to the court don't constitute binding precedent and i think would be pretty extraordinary to say that chang in a single sentence with no analysis in the case presenting a different skill decided a question that caused the th circuit just a few months ago to grapple very carefully with this question that is otherwise divided the circuits so  so i don't think the change to give this court much pause when i do you think should give the corpus is to follow chang in light of the clear text of the statute and the statute your your position is no matter what happens after that sixty day period no matter what information comes to light the government's out of the box the deliberate later scott the wheel and the government can never to get back even though this is being prosecuted in the name of the government is not right it's being yes yes your honor bu oh this is going to be all right and then a bombshell emerges that shows this that case absolutely should not proceed your position is just too bad too you know the government missed its chance we got it more run with it alleviates some of judge jordan's concerns but what it can't do you is intervene in a way that limits the status or rights of the person initiating the action and we know just two sentences but let me ask you so if we were  instructions would be clear that the government can then seek to intervene and then renew its position in this missive that is that your understanding of the statute yes or no your honor the government can seek to intervene and they can participate in a secondary capacity congress made it absolutely clear that the right to conduct the action invest with the relator once the government the clients intervene it's the plane to their position to even have to govern is it leaks in or maybe they can never asked to dismiss again because the the relator scott right of the person initiating the action the right of the party are split at least that we're about and i and they're subject to section subsection two so you get a notice of the hearing honest question is does the government still have the right to dismiss whether or not the government proceeds with the action and when congress wanted to give the government those rights it did so in subsection c for that's exactly the language of the government that congress used to set up the government's rights when they make that initial choice not to intervene and it applies whether or not the government proceeds with the action if see to say the government's dismissal authority applies irrespective of whether the government intervenes your respective of whether proceeds with the ac c two would only apply you know your opponent says your reading of that means that that section applies only if the government keeps the case that day that section only kicks in if  proceed with the action then the relator has the right to proceed now the right way we well i understand i understand the structural argument you're making i'm trying to get to respond to the response that executive health has made which is they say i'm ill mr poser will do a better job but i think their position to be that can't be what congress meant because then there are rights that the government would completely lose including and thirty dollars c to be to settle a case a can do as they couldn't they be out of the box completely and the rights of the government would be in the hands of a rd party no matter what kind of information emerged no matter what kind of information emerged yes you know your honor now against you st of all the government when they declined they're not even a party to the case and this isn't a rd party the related was assigned interests by congress and they bring this suit for the person and the government this is why the supreme court said that the relator has independent rd party article three standing that this isn't just an interloper at this point this is a party to the case and it's highly unusual to say that a non party can seek to settle someone else's action they certainly at least have to intervene and before they can allow so you're so you're your position really is that the government is not they got nothing to do with this case they're not a party you heavens to betsy what's the government doing step in here and talk about this but sort of what it sounds like you're saying you know what's going on here what's the government declines then just got to sit out and shut up that's we've got it no no your honor now the government has every right to intervene and to participate in the case and if they see that there's this bombshell that goes off and they they don't think the relator is doing a good job or they think the defendant did nothing wrong they can intervene and they can participate they could bomb motions they can take depositions they can support that if they are close messed up they can't the smith or and that we've heard in some of the briefing that this would just if we read it your way it can't be constitutional it can't come port with the take care cos your honor i don't know with all due respect i don't think the take care clause is a very serious inconsistent with the majority he does happen to reach that a clear clause issue and said that the long pedigree is each in historic practice itself is enough to overcome heart of the team but there are other reasons looking at the merits of it and the th circuit in th job walking through this if you compare this state cause this article to issue with more some versus olson for example the you look to the statute is a ball and you say does he still have enough control over the action and in this case the government seventy three that lets the government conduct all the discovery they want before they make that decision and then once they've decided to decline then it point to related takes control the government concerns are going to participate they just can't participate in the also intervene leader in the case it if we're talking about the the the precondition of the government intervening let's assume that that's the statute then why wouldn't that be congress is drawing a clear line between proceeding with the action and then later intervening and you know that because it can't be the case that once the government intervenes now the government has elected to proceed with the action that would make nonsense of section three look at the  when the government does elect to intervene after initially declining congress said in no uncertain terms and my very able friends on the other side have yet to explain what this language could possibly mean they said they must do so without limiting the status and rights of the person initiating the action it doesn't say some rights is a say preserving some subset of their rights or preserving some variant of their status the rights at the point where the government declined is the right to conduct the action and we don't have to guess about that congress said that in the st sentence of c three that's two sentences above this language giving the government a limited right to intervene and the supreme court for what it's worth is reading the statute the same way that i'm reading it and they did it again it wasn't the decision they reach to be absolutely clear this wasn't the holding but if you look to the court in eisenstein it said that the government is in a party to the action when they decline and thereafter they're limited to to exercising the specific rights set but that's not what congress did period if you would like directly and he said you've never yet explained what the meaning of that textual language is it says nothing years going to do it should impair the the rights that they've acquired over the course of the case of paraphrasing that you know what we're talking about yes just or not i think for that i'd send you very quickly to page fifty four of the requirement to cross to intervene st i think they did that largely to get past the problem of not creating a new collateral or doctrine appear right because in that case the district court had not dismissed the case  motion as being a motion that would inherently come along with asking to intervene and then the courts that it would be an abuse of discretion in a circumstance like this for the district court not to grant so i don't think a lot i'm sorry i'm sorry go ahead if we thought there was a requirement of a motion to intervene then then we need to look at what the standard is and if there needs to be some showing by that's precisely what the th circuit does it you know if it looks that will forty one to inform the analysis but it also says that rule forty one references back to the organic statute so you're back to the false claims  if you know it would seem to be ipso facto that if the united states wants to exercise its c t right if you were to take the seven circuits position and again we don't you're not to agree with that specially in light of having gone in the other direction then you would reach the conclusion that of course there's good cause to allow the government to intervene so that it can exercise its statutory see to right and then the court also set you know theoretically maybe we would have to remand here but we don't really see the for dismissing were pretextual there you know there were concerns raised on this case early the government closely monitored it related or is always the centrally urge the government not to sniff cases too early but to wait to see how evidence comes in the government did exactly that and judge belsen wrote a very careful opinion that i think is the opposite of some you know idea that someone has said that's not the question this  is assuming we saw that was an issue that needed to be addressed shouldn't that be a question that the district court does address so your honor i might make money at this point and raise the issue of waiver about this you know a clever you know attempted new approach by mr geyser below the relate or argued essentially so if the the field of swift on the one hand is part of the circuit split and ridenhour and  argument and if they wanted to make an argument like that your honor i respectfully to in order to avoid waiver forfeiture they shouldn't have sandbagged judge belsen they should have presented that argument carefully to the district court handle this if it wants c to follows on and there are some things that the government can do the three says if the government elects not to proceed then the person who went in and invested money and risk time they've got the ball now what's wrong with an analysis that looks at it in that fashion and doesn't allow the government to take things in out of order and say no no even though we elected not to proceed we can come in anytime we want regardless of the investment that's made by the relator and pull the rug out from under him when we don't need and in fact we can do without any reason at all unfettered like you're done with what is what's the textual argument that says when when a statute is set up in that order you should ignore that  so your honor let me ask another question st by talking about the tax and then talking about the constitution and the take care clause arguments in four of the text so st looking at the text as we look at the sequence of reading see one to would the congress have to put c two as c two if what they really meant was this c three should be c two and then you can go and will make c two and to see three why would they put c two ahead of c three that's that's what i think and i'm maybe mister geysers got a different pitch and i missed it but i think that to be the sequencing argument if they had meant for those rights to occur regardless of whether the government chose to go forward with the case they didn't put it after is that because there's not the the preliminary clause there whether or not the government proceeds with the action that's presidency for but not presidency to he argues that therefore that must mean that it applies only if the government kind of have three categories rules for when the government proceeds with the action rules for when the government doesn't and rules that apply generally right and so it looks like congress is carefully using introductory phrases to signal when they're in one of those three boxes so  because what you just said is significant you just said it in the order that they say it should be said you just said there's when when the government proceeds and when the government doesn't and then some general rule after that that's that is not the order the statute the order the statute is when the government proceeds and then some things in the middle right and then when they don't proceed so  isn't your logical discussion of this exactly what mister geiser is pressing on this which is that the congress you know you may not like what they said but they said what they said they said it in a specific order because that order has meaning you're we disagree with that i think that it's not a requirement for congress to start with a rule about what happens if the government proceeds then provide general rules and then then again to proceed and then if you look at for it says whether or not the government proceeds so there is no logical order to the statute your honor they're setting up a series of rules each of which they want to be obeyed and we would submit that on this are geysers reading specially  we're we're well over your ten minutes but this is important so we're we're we're on our time here i would like to ask about the standard for dismissing and you've taken the position that swift got it right i want to ask is there any meaningful difference between sequoia orange and swift besides the words you know if all that has to be shown is a rational basis and what constitutes a rational basis is what you say and namely that it'll cost us money the government's if it cost the government any money to litigate or or participate then that's got a rational basis for saying stop is that not effectively the same thing as saying unfettered so your honor i'd respond to that by saying that i think in the in the mind run review i think that you could argue that the two standards converges here we certainly think that under changing if you find that same approach here based on the careful factual record and the fact they're not clearly erroneous finding the judge bilson put together  that you should affirm on that basis not but i'm trying to i'm trying to get something practical and and what occurs to me to be real you said there's not much daylight i'm trying to find out if there's any daylight at all if the government spends ition is and i take it that it is that if we spend a nickel more that's government that's money out of the government fiske and it's a rational thing for the government to say we don't want to spend that nickel if that's enough to say rational basis is there any difference between rational basis review and unfettered discretion to dismiss your honor on that very practically i think that's part of what was spotted caprices review under the a p a which is a lot more searching than a rational basis so the problem with the rational basis standard is that it subject to creeping out to you know mission creep to include more searching standard o review the reason why am i hearing down there my dear and you're right mister clarke that there's don't there is no daylight there i hear you saying please don't don't read anything more into rational basis then if we spend a nickel stop because we can throw it out and don't let there be mission creep and don't turn this into a p a review so are you agreeing with the premise of my question that there is no real difference between rational basis review under sequoia orange and unfettered power to dismiss under swift if we could be assured that things would be howled at rational basis and not free then i would agree with you but the problem is that the standard is susceptible to the if the government had decided at the outset not to intervene that as happened here or the relate or can then be investing learnt sums over years of time  concerns in the back room that there should be some who are searching for a minute if not of the standard using at least forty when they st come some threshold for or district to district court to review that focus should be on the government's decision to dismiss the action notwithstanding the objections of the person initiating the action if any objections can be disregarded under that notwithstanding clause then surely reliance interest can be disregarded if congress had wanted to include reliance interests in the sea to a hearing calculus they would have put that into the statute well did they but why did to those naturally in a clarke when they said that the government  that they're supposed to be a hearing before an article three judge i mean speak to the u c b court's observation that typically congress doesn't turn us into convening authority to offer parties coffee and donuts so that they can talk something over doesn't the fact that the statute includes a provision for a hearing imply that there's got to be some kind of work for the article three judge to do they're not just there to invite people in and give them a conference room well your honor i think that it serves several position is it doesn't make any difference what argument they make it means it's meaningless under swift we get to do what we want to do you can talk till the cows come home it has nothing to do with what we get to do so how do you square that with the or later is arguing that a particular case should not be dismissed it may argue that there is a fraud on the court may argue that there is some the ferias reason you know for for a case that's being this that none of that was aired on the record here by the on to play court has no role to play except to say i'm here now you guys talk well if you want to do the seven sir your honor but ultimately the court concluded that most of the times and all of the court would not be significant that's why i read the line about if there is supposed to be some standard the court's applying congress left that out of c to a which is not an important thing but i would also point you to congress your honor when they hold hearings they're not necessarily hearings that result in some kind of r obviously right they hear things for the public they make the executive branch accountable when it over as i sit here and that's true but we're not a congress and we have article three constraints on us we don't give advice re pinions and it's odd to hear you suggesting that there's a new role for us which is public convenor we're just there to sit and listen while people talk and then say nothing that's it's look it's like and vise of the opinion one step beyond you just sit there guy in the robe lady in the robe say nothing because you really have no role here that sounds like what your position is no i'm certainly not saying that the court could issue an advisory opinion or that there's anything contrary to article decide what the purpose of the hearings is and if congress had one of the hearing to be more searching they would have set a standard in the text of the statute under your position regardless of what the people arguments are that are presented to the court have to do with the government since that's your position our our our position is that on the circuit split especially the original sort of split before the seven circuits you know take which we read to be more on the side of swift than on the side of  hearing would not be used for a purpose that is intentionally mention that the government's decision based on the who the actor is and see to a not the court would be the one that prevails unless some issue of requiring you know intervention essentially we think if if you look at the statute as being the overriding set of instructions and that you know the federal rules of civil procedure are not designed to alter that then the case should be dismissed we don't think that applying the the rubric of rule forty one dollars that makes the analysis even more complicated based on the timing of when a filing you know to say very straightforward position provision it as a given for purposes of our discussion with you that the there was a real process here it was not coffee and donuts please speak to the position that we're getting from the relator that none of that process should have happened because the structure of the statute is having declined to proceed with the case the government did not have a right to come in and take and seize the wheel structure of the statute were different i mean speak to the structural argument there structural argument is there's an order here and there's a logical order and see to follow c one because see to should exist and be understood to exist in an environment where the relator in the government are operating together because the government is in the case not understood as meaning hey  after the government's decline to be involved it can still come in and from the government's perspective even without intervening to show up and dismiss what's the what's wrong with that argument from basic logical the the judge's decision to issue some read judgment rulings as well the government has told us in essence they have briefs that they're not touching that should should we touch answer or answer the takings argument if you would mister posner that there's a there's a real chosen action here which shows inaction is a species of property the statute gives that to the rule later this relate or expended millions of dollars the government has no right consistent with the takings clause to walk in years after the fact and say something he could have said at the jump which is now we're not doing this that that is so why not they're not they're not quote just pursuing it no no relator does that out of an even most an airy motive they're doing it because there's a pot of gold at the end of it and the statute is set up to give them a pot  gold that's what congress did it like it should get out there in front of them look at this cash look at this cash and so they go and they spend resources and effort and time and they do it because there's a promise of money at the end of it and that promise of money at the end of it is just israel it's a promise of money that exists when a person goes in a case that doesn't have to relate or factor to it they might win they might lose but nobody suspects in a case where you have a promise of money at the end that that shows of action is not a thing of real value those things get bought and sold in the market you know choses an action so why isn't that a real species of property that they've got a right to quite long with mister clarke mister posner but as i think everybody here would agree this is a significant case so we're trying to explore all the angles and i'll ask you at the jump to answer what mister posner said that c two a is a limit on c one not the other way around you want to would you say whatever else you want to say but please make sure you address that and mister clarke's point that the most significant language in this statute to see to a statement that notwithstanding the objections of the person initiating the action that is a clear statement from congress that the government's got unfettered discretion can you just of the statute which which your honor is recognizing which by the way the th circuit expressly dop that they recognize that congress marched through different options and if you look at it says you know i'm sorry to interrupt but i want to make the same point just did to mister poets we're not recognize  on the other hand if the government elects not to proceed and then unseat for now let's say whether or not the government perceive that the structure really couldn't be any clearer or my friend to say that it's one or seek view is it is a limiter subset of one of the other you see this is saying that in this specific we actually references the government prosecuting the action and the relator in this secondary role is interfering with the government's efforts you can limit the relator that only applies when the governments in the in control and see through these even worse that involves a situation where the opponent the defendant is trying to limit the raiders role saying the relator is effectively interfering with the prosecution against there's no scenario that i'm aware of anywhere undersea to d where and where that i'm aware of an american jurisprudence where the defendant has the right to limit the plaintiff's case against him but that provision does make sense if the government is in charge and the relator is merely participating on the side so if you if you take the same principle of words are known as a company that keep in statutory provisions or known in context all of the rights in c to c to a three d including the government's dismissal authority make perfectly good sense when the government is a party to the case and they're participating in their own control were later is not they do not make sense if the government is not a party to the case this is traditionally under bedrock litigation norms the government has absolutely no authority just like any other party to file any motion at all in someone else's case you have to intervene and participate the interest filed documents in someone else's lawsuit that's not the way that litigation works so if they intervene and move to dismiss if they intervene they again they cannot move to dismiss under the dismissal of the already of c two now they can file any other motion they want like any other party but they're not controlling the case and again the reason we know that and again the government does not have an adequate response for this we still haven't heard why limiting the status and the rights of the person initiating the action would mean that the government can intervene and displace th relator now my friend mister clarke a very able to turn he has said that what congress was referring to with the status of rights is the status and rights in c one can see to it congress wanted to say that that's exactly what they would have said they said without limiting the rights and see one and see to what we do know about how about this mr geyser ken are you with knowledge inc that they can intervene and that they can move to dismiss maybe they don't have an unfettered right but they can ground it so make sense let's say the government concludes the defendant is right they really do think the case is meritless it doesn't say to claim this was the th circuit scenario actually where they thought the defendants conduct not only was it was lawful but was beneficial they can the government has the power and the right to move to dismiss in its own right not not that they have stepped into the shoes of the plaintiff as you're saying go they cannot do that but like any other party who's a party to sue they can move to dismiss a decision going forward exactly your honor i want to be very clear so that it's i don't misstate what i have what our position is they can move to dismiss as any other party could under the rules of civil procedure like a rule twelve motion in their own right or rule fifty six dollars motion in their own right when they can't do is invoke the dismissal authority of the false claims act which is a different mechanism that's that's authority that congress set out when the government proceeds of the action and they're in control so this is not the same thing is filing the rule forty one motion where and the rule forty one standard by the way to answer judge crosses question if that would apply traditionally in this context where the government gets sick ace at the outset under b they decide to proceed with the action they don't think it's merit they'd only has any merit they want to dismiss it this is pretty answer and they can file then a motion to dismiss but what's extraordinary here and this shows the property interest at the relator has normally a plaintiff under rule forty one pre cancer they just file a notice with the clerk that the judge does even have to act on itself except here yeah understood understood but would let's just play out this twelve b six scenario for a minute in those circumstances would the fact that the government is the government and if the relator purports to act in the name of the government give the government's position some greater weight that the big reviewing court the trial court that is the district court should should pay attention to another words it's not it is a twelve dollars b six motion but it's a twelve b six motion that would recognize that the government has a specific and a particular right and interest that other parties generally don't have i think the government may be entitle to the same deference that government filings typically have even when participating isn't in the us but that that comes with their expertise in effectuating in ministering federal schemes and the key thing here is that they can't all my work not just their not just their expertise but their right to say they're doing this in my  this is my right as the government this recovery it is if there is any is coming to the government's and they're acting in my name now maybe under the structure of this of the act i don't get to come in under rule forty one or reassert or take the wheel back to the plaintiff but i have a i have a right an interest here and it's not just anybody else's right interest it's the right of the government to say stop because they're doing it in my in article three standing this is an assignment of a property interests it's now the relator has part of that claim which is why any motion that the government can file say you're on or ask can the government file a motion to dismiss they can but i'm looking to dismiss on the merits they can't file a motion to dismiss under the dismissal of the already of seats you say simply saying they just don't want the litigation to proceed for whatever reason that that's that they lose that right when they decline to intervene at the outset and to go  through just again and you are the court ask questions of my friend about the structure and you're exactly right why does seek you come before c three i mean again i recognize it's you're not taking the position you're asking the question for that but the question i had an excellent promiscuity which is that congress structured this in a very clear way my friend mister posner says well c q is a stand alone provision there's no logic to the to the structure and what he's effectively saying again is  whether or not the government perceive the action as what stand alone means but again when congress wanted rights to ply whether or not the government proceeds with the action it specified those rights in c for its start specifically the initial phrase of c four is whether or not the government proceeds with the action that mister posner is making nonsense of the statutory scheme violating the cardinal rules that congress passed it's language like that at the beginning is he for it doesn't want the same language to be read into as you do and s textually length to see one scene when n is was saying the relator can participate even though they're now not in the lead subject to the rights in c to now let us tell you what those rights are so there's a clear logic in structure to the act and m mr clarke you know again very able lawyers can explain what those terms can possibly mean or why congress would have structured the statute this way and are our position really t just underscore this as extraordinary as it sounds as  to give the government the right to intervene after declining from that not decade long period the government wants tried to dismiss a decline case and you'll find this incentive works because the response to that is there's a whole lot more keep him at litigation today than there ever was back then so you would certainly expect there would be more in the way of efforts to dismiss but the be that as it may were we're now an hour and a motion to intervene before seeking to dismiss you know again disagreeing with our contention that they don't have the dismissal already at all the proper course would be to remain and to let the district court decide in the st instance whether there's good cause to intervene now for the scope of the remain and because there is an independent summary judgment ruling on phase one the court should address whether the court was correct in independently granting summary judgment on phase one we would submit for the reasons in our brief i know we're going over i'm happy to answer any questions about it but that the court was clearly wrong for multiple reasons to reject our phase one claims on the merits if you agree with us there you agree manned with those claims alive with a face to claims that weren't disposed of on summary judgment alive and the question then would become the government's ability to intervene for its stated good cause and then to support their motion to dismiss if you affirm on the phase one claims on the merits then  remand would only be whether the government can intervene with good cause in order to keep the phase two claims alive so i'm sorry that it's a little complicated but it's because of the disposition below is a little unusual person but i take your argument to be that's tied in to see one and it only makes sense in that context so you have the answer to i take your position i think i think i understand your position so we're good oh ok that i appreciate the opportunity presented rebuttal ok well we thank all counsel in this case for very helpful argument we've got the