well here the next case on the your calendar united states versus the sil may please the court the government's position in this case spells not the end of key tim under the false claims act as we know what it would spell the end of key tam altogether the government's position is untenable and the government's position is clear and that is regardless of whether a relator voluntarily dismisses a complaint or whether the government dismisses the complaint for the relator over their difference it is not the print sure the principal case the government relies upon is an unpublished decision at the fourth circuit court of appeals called webster versus united states webster relied on a number of cases as did the district judge below and they relied on cases for the principle that the moment a case is voluntarily dismissed on the rule forty one the case just poof goes away and it go longer fac exists if you scratch the surface of those cases none of them stand for that proposition every single one of those cases those stand for the proposition that with respect to the merits between the parties the cases if it never existed so for example issues of law the case doctrine issues of wrester to kata issues of claim preclusion that's what those cases stand for that you cannot point to the earlier case and say look at the ruling in the earlier case now in my second complaint i'm going to hold a party to that issue that you can't do and if you look at the right and miller section that the fourth circuit relied upon webster and that the district judge incorporated in his opinion the same exact section section two three six seven if you look at the language of right miller and then go to the footnote which is footnote nine and look at the cases because those are the exact cases the government relies upon each one of them deals with that exact issue and so we would posit that the voluntary dismissal does not have the impact that the government purports that it does and i ask you about that the meaning of the statute you're looking at the words  stature at least when i see the words alternate i take that to mean that there have to be two options brecht they're do they do right there does or does sorry had had brought its case i would look at the language and focus on two words an issue in this isn't to be clear this is in three seven thirty c five i look at the word initiating and the freeze if the action had continued sixty five contemplates exactly what happened here all that is required and let's make our position clear all that is required for the relator to recover is that substantively and that's a keyword a substantively valid he can action must have existed at some point in time prior to the government's choosing an alternate remedy and the case law from other circuits supports this but look when you look at you you point to the language of initiating but when you look at that whole statutory section they talk about things like the person initiating the actions right to call witnesses that statutory section is written in such a way that it is soo much that the relator will do more than simply initiate the action not necessarily true i mean there are other aspects where the government can come into the case if the group of this way of the government decides to intervene under subsection b then the relator doesn't really do anything in effect either well let me give you this then hypothetical now nonexistent no longer existing offer to fix it was an alternate remedy i think the analogy humbly speaking has a bit of a flaw in that in the respect that in your hypothetical joe if we  put in in our case joe supplied the tire joe supplied the air joe supplied the bike and in this particular analogy and again folks in our case this bike couldn't go without mr to solve a period and the government told his council below they had no other relator they didn't even know about these defects until mr disavow brought it to their attention and that's extraordinary problematic for the government he is the original source of this information and the government to that information and again the dressing the law you know is a big factor too but the government took that information forced him to and i would say this is the most involuntary voluntary dismissal i may ratner saying that the assistant u s attorney at the time i know she's now left the office but the assistant u s attorney at the time threatened him with an attorney grievance in the state of michigan on a ethics opinion that had no a civil appeal so long as the fugitive status has no substantial bearing on the civil appeal this is an under his conviction in michigan is entirely unrelated to the key term perceiving that's number one his criminal conviction said that district courts cannot categorically preclude a fugitive from participating in litigation there are other remedies that the government can go through and that a district judge can go through to ensure  acts in the in the criminal context of a criminal is a few has is a fugitive from the law and he then appeals his direct appeal he could be appealed his conviction and this is what happened in our dollar then there are certain concerns that do come into play that are not the same concerns in the supreme court has said this the only concern when you have fugitive status combined with a civil appeal is is the is the court of appeals judgment going to be able to be enforced if they decide the case and is there prejudiced the government neither of those criteria are satisfied here because of the fact that if judge sullivan looked at the case from him just saw the complaints themselves and compared them he would see that there was significant it what was the word actually asked to do he was asked to decide a number of issues is to decide the dress issue he was asked to decide the statutory issue he for whatever reason did not even address the duress issue even though m affidavit was submitted with the motion and mr ranters affidavit was clear jamie nowaday threaten me with the michigan ethics opinion a michigan ethics opinion that had no bearing on this case that michigan ethics opinion dealt with an attorney that was going to potentially provide a car and money to a fugitive to leave the jurisdiction here the government knew exactly where mr de silva was the whole time they communicated with him for a matter of three months they had teleconferences w ith him over a three month period tourney wouldn't have been subject to this opinion i am saying not to fight it i am saying that jamie now a day misrepresented to judge nathan the actual relevance of this michigan ethics opinion that is exactly eternity didn't fight that didn't fight the the directors when there's poor when when assistant u s attorney comes at you and tells you they're going to file a grievance grievance commission charges and you have a bill to pay for your liability malpractise insurance and she doesn't in the real world and stand in court it sounds like one thing but the real world that's a lot of pressure brought to bear and also mind you he did not have a crystal ball in the sense that well five on three dismissed this case and mr silva can't come back to the country we could initiate it he didn't know that the government was going to to time them and then file the same exact claims thirty months later there's no way he could have known that and besides the fact even when the government did do that and they filed the settlement they didn't underhanded manner to ensure that mr de silva and his counsel would never know about it thank you thank you action ourselves the government doesn't dispute that mr de silva brought the information to the u s attorney's office asking without means to distil information that wouldn't have been an accident and that a swell another key tamar later stands now based on this record your honor and the false claims act gives relator certain rights when they make disclosures to the government and file a key tamm action as mr de silva did here the critical fact in this case though is that mr voluntarily abandon those rights when he dismissed his key to her opposing counsel say that it wasn't altogether voluntary mr opposing counsel is reading things into mr radn filed we noticed an allegation in the complaint i believe it's a page seventy of the joint appendix that said that mr de silva was a resident of michigan who we knew that was flatly untrue because we knew at that time that mr de silva had already fled to brazil to escape a michigan criminal conviction to take up residence in brazil i mean i don't think it's it's wrong on its face if he intended to return to second well certainly well apparently your honor he didn't intend to return notwithstanding representations that were made to the government  and to the court who were offended by the fact that he claimed he was the michigan resident but he was in brazil not at all you are not offended i didn't bother the government because the allegation we thought was untrue and in a complaint in which the government is the real party in interest and in which a relator is making allegations in the government's name obviously the government has an incentive to make sure that those allegations are his are truthful nothing to do with the information he gave you a bad  irrelevant irrelevance and truth are two different concepts around it said that he was six foot five inches tall and he was only five six would you have been as offended as that wrong fact that we weren't offended your honor if we knew that that was a knowing misrepresentation and certainly we would query the relator on those allegation as a misrepresentation is what i'm asking again materiality is irrelevant your honor the question is is the allegation truthful and so the government is not going to apply a relevance test to determining whether or not true allegations should be made in a complaint that's filed with the court the question is was the allegation truthful and what we did as reflected in mr radnor's declaration is we sent him an email we sent an email to opposing counsel asking him to explain why they chose to make that representation in the complaint and why the continued representation of a fugitive relator complied with the a pluggable michigan ethical  defendant might have had inaction might have had an argument that it was prejudiced by the inability to access the relator that it bad that's a possibility it's not at issue here but that's an area where it could have applied because if there is prejudice resulting from the absence of the party then surely the other party has a right to bring that to the court if there were any allegation that they would have been prejudiced if you wasn't there once you took over the silver to testify you had all this information correct well no we didn't take over the action your honor and board an alternative action no no your honor mr disobeyed voluntarily dismissed the action right fifteen months elapse approximately while the government continued the investigation so to to get back to judge katzman hypothetical basically the government got on the bike and rode it itself and at the end of the of the racecourse the government filed its own action under the false claims act pursuant to section thirty seven thirty a which gives the attorney general the right to consider commence his his or her own proceeding under the false claims act aside from anything that might happen with the relator settle that against the defendant that was asserting fugitive dissin title meant doctrine but from where the government was standing given the procedural posture of this case the fugitive dissin title meant really didn't come into play because mr de silva had already dismissed the key t voluntarily he says it was voluntary well again your honor the record simply doesn't support that and in fact i would point the court to judge nathan's orders at page one thirty seven and one thirty eight of the record two representations that were made to the government that the counsel for mr disserve the would voluntarily withdraw the plaint if the silva did not surrender to michigan authorities by june twenty third tw that's on page one thirty seven a joint appendix clearly mr de silva has continuance of the key tam action in the view of his counsel based on what the court road here was tethered to whether he was going to surrender or not and when he did not surrender past a certain date the court inquired and said a briefing schedule for the motion to file for the government to file a motion to dismiss now that process is critical because if the government is going to dismiss  objection of the relator under section thirty seven thirty c to a there has to be a hearing in front of the district court now mr de silva at that time could have raised any arguments about the government's conduct of the investigation to judge nathan who was supervising the key test he did not do so that would have been the time for him to make those allegations the latest contentions are also belied by the by the text that mr radnor acknowledges that he sent us a now a day on the kit to day the case was settled that's at page one seventeen of the joint appendix it said nice work on the l three litigation i was  and it said the irony milton just called last week and said he wants to come home did another relator step up just curious and then it was nice working with you i'm happy that we were able to help that is not the statements of someone who felt about the textural language and the use of alternate and i understand your argument about the need to have options and let's say that that's assume for the moment that that's correct but looking at the word alternate does it have a more specific meaning under subsection c five so the second sentence of the provision states i'm quoting if an alternate remedy is pursued in another proceeding there later will have the same rights as if the action had continued under this section and under this section as i want to emphasize now this section refers to section thirty seven three zero at least as i understand it which governs all civil actions pursuant to the f c a so if we were to accept your argument should we read this sentence to mean that alternate remedy refers to something more than just two choices but in particular refers to a proceeding other than a civil action under the f honor i think we would encourage that reading is certainly on the facts of this case and what this what this provision is saying is that if there's a situation where the relator has an existing key tam which gives the relat or certain rights under the false claims act in those rights are listed in the statute itself particularly in section subsection thirty seven thirty city and those rights include the right to a recovery of the proceeds and then the government engages in an alternate proceeding such as the one discussed here an administrative remedy for a civil money penalty and in that alternate proceeding essentially litigate or settles the fraud claims that are at issue in the key tam in other words your honor the action in this section thereby essentially cutting off the bundle of rights the relator might have because the key tam can no longer continue that could be an alternate remedy situation so to answer your question more precisely your honor the alternate here is he tim can no longer continue that suggests that something will happen to to terminate this language if the key to him action had continued suggests that the key to him had already been terminated and is that w happen here not quite your honor because in this section the assumption is that the government takes an action and engages in an alternate remedy that results perhaps in the stay of the key tam as the government prosecutes its fraud claims via this other proceeding or perhaps results in the dismissal of the key temp as a result of the government action in a genuine alternate remedy situation but here the did they were later himself dismissed his own key tam before any of this ever happened and it was telling that the relator could not answer the court's question about what were the alternate here because there were no often it's here the time the government filed  complaint there was no alternative to choose it was a complaint under section thirty seven thirty of the false claims act and therefore there was no election there was no alternate and your honor if if we continue with the language the person action shall have the same rights in such proceeding in other words the alternate proceeding as such person would have had if the action had continued under this section well if we take those one bills of rights including the right to seek a share the relator has that right in his key tam as long as the key tam is pending and if the key tam is successful then the relator is intitled to a share of the proceeds but if the relator voluntarily dismisses the key tam then the relator has no such rights anymore and so the city has no rights that are remaining in the key tamp that could possibly be exercised in the other proceeding including the right to seek a remedy and this makes sense because another relator could have stepped forward and brought those brought those claims after this relator dismissed his key ten or so in this case none did none did your honor but but one could have and then that were later would have had rights under the statute i just want to follow up on some of the or with respect to what the district court can do so if the district court realizes that and this i'm not saying this is this case suggest this is not the issue today there are basically i think two approaches that have developed in the case law to this there's an approach in the d c circuits decision in the swift case which agreed with the government that the government has unfettered discretion to dismiss key tam's brought in its name there is a narrower a test that was adopted by the ninth circuit in a case called sequoia  eighteen f third two fifty and it was decided in two thousand and three that's the case where the d c circuit said that the government has unfettered discretion to dismiss to keep them brought in its own name the sequoyah cases from the ninth circuit it's an earlier case it was decided in one nine hundred ninety eight and reported at one fifty one fed third eleven thirty nine and the court there required the government to show a rational relationship to a valid purpose when  ating the dismissal of the key tam we believe that the swift court was correct not to adopt sequoia this court hasn't definitively held on this issue although i will note that in the vermont agency of natural resources case which was decided before swift but the seniors sequoyah this court in discussing the false claims act generally cited the sequoia case with apparent approval i would only note that that was in dictum it was pretty swift and ultimately the supreme court reversed the vermont agency of national natural resources case on other grounds but that case that this court's decision in that case appears at one sixty two f third one ninety and even if the court adopted the sequoyah approach that we would have satisfied that approach but a clear that didn't happen here because even though the district court was clearly contemplating some kind of proceeding it did set a deadline for the united states to file its brief in support of its contemplated motion to dismiss and under the statute would have been required to hold a hearing where all of this would have been decided mr de silva short circuited that entire process by simply voluntarily dismissing his complaint not long before the united states brief was do i think he didn't resist dismissal the government could have moved to dismiss as we've just been discussing  dismissal correct your honor he could have resisted dismissal but yet he chose to voluntarily dismiss the complaint himself thank you thank you should be clear about the record and what the government saying about mr de silva stories here the government represented to judge nathan they were going to dismiss this case either way he had no choice in that whatsoever either he was going to voluntarily dismiss this case or the government was going to do it for him and the government has just represented to the court that on this with they can do that with unfettered discretion and according to their interpretation of the statute all they have to do the next time this comes around is dismiss the case for the relator and commence their that the government is on fetter discretion and that is supported by the statutory text i believe under sea to weigh against the policy of the whole statute and that's exactly my point is poor their position is contrary to the statutory language and legislative history just to encourage to come forward correct we want to encourage them absolutely and the government's interpretation of the statute and their position in this case goes back to exactly how i open their earlier will and key tam period no relator with any measure of sanity will come forward with allegations risk potentially life and limb to relate information to the government of fraud if they have to deal with these heavy handed tactics from the government and i would say i'm from brooklyn we'd actually call these breast knuckle tactics from the government and i would raise one issue the civil action cover sheet from the second action before judge solving this is what mr silver was dealing with a question of this is on page forty five of the record question and this was again this was signed by a usa jamie nowaday signed by her question has this action case or proceeding or one essentially the same been previously filed in the southern district at any time no sub question if yes was this case voluntarily dismissed involuntary dismissed why would the civil action cover she asked that question a voluntary dismissal has no effect on this case it clearly does because the case is the government sites and again that webster site have no bearing on this issue and if you look even at move forty one it's not as if the first action goes completely away on the rule forty want to believe a one b if you file a case and voluntarily dismiss it then you come back you commence another action and you voluntarily dismiss that one the federal rules clearly say on the rule forty one the action is dismissed with prejudice why because it's not as if the first case completely disappears again those cases only deal with the merits of the action between the parties but going back to the civil cover sheet it's indicative of the lies that occurred in this case they were brass knuckles tactics here by the government to ensure that mr de silva and his counsel never caught wind of the settlement and how do i know that because if you r i can i can eliminate this note because i happen to know mr mr rather and i've spoken to him he wanted to speak to mr mrs nowadays because he wanted to see his main point was he wanted to see if there had been another relator in the case any new if he sent her an e mail that was derogatory and with a lot of smoke coming out of his ears she never would have answered his question he got exactly what he wanted and now it is in the record and it is clear there was no real leader of the relator in this case the government had no other information except what they derived from mr disillusion ok and the fact that the government marshals and this represents judge nathan this michigan ethics opinion and they and they try to  to and successfully try to get the client to voluntarily dismiss this case based on a michigan ethics opinion that has no bearing on this situation is very telling and i'll add another point because i investigated this case most preparing for this appeal and although it is not in the record but i will say this if this court does decide to see in this case back to judge sullivan co counsel below will testify under oath and or with the sworn affidavit that jamie now and the reason why mr de silva never came back from brazil was because he concerned of still these allegations from the government that they're going to prosecute him for lying to the f b i i would be kind of concerned coming back to if the government was going to manufacture allegations like that thank you thank you