three minutes of that time for rebuttal but he's ok with quite a good your honors the the district court in this case found that the defendants had submitted more than nine thousand false claims to the government but concluded that it had no authority to impose any of the penalties authorized by statute because to do so would violate the excessive fines clause of the eighth amendment the court's holding rests on three princip grounds that first that it found that the statute compels the court to consider imposing a minimum penalty for every claim proven in this stablished regardless of the fact that the letters in the united states had sought considerably there was no showing adequate showing by the plaintiffs of economic injury to the government and thirdly it concluded that because the penalties it believed had imposed were excessive it had no constitutional or statutory authority to remit the penalty to a lower amount a lower amount that is consistent with the constitution we think that all of those grounds are incorrect but i'd like to start with the last one if i may the court the scope of the court's remedial power upon established even though the demand before it the demand by the relator is where you claim the error is the all or nothing approach for the court below yes that's right but what i'm getting at is whether they all or nothing what they all is is the all fifty million required to ask for all the penalties that are authorized no how that's not all i want to answer the question i'm sorry is that fifty million or twenty four million we believe that the that the all the all or nothing which is the all in all or not we believe it is million i mean the awarded twenty four million or you aren't we think the correct approach is to start with the penalty that has been requested by the government and rewrite it and i shall give it i'm sorry but we would do what you would have us as a court just say the solution is the twenty four number yes your honor i we would not to end it but for the court to consider what the appropriate number is one of the court understands it does if it does have authority to adjust that number down you don't think that's the appropriate remedy well that's certainly within authority and its remedial power once it concludes that the statute is unconstitutional as a matter of so that in court but the statute says for each violation  about the numbers he's not asking about all that i don't think what number is that play was the question again your honor we it is our position that the number requested by the relator is and the government is at play it's the twenty four million that is less than the statutory minimum thought the court then would have to adopt your number yes or why is that so if in faith is not you said there's a distinction between your discretion which is what if you come up with a twenty four and the court's discretion remanded to a constitutional violation why couldn't the court say the fifty five number is excessive and i think on of the facts thirty seven is appropriate or tens appropriate why is it necessarily twenty four hours when i don't understand for anything and you can ask for it and the court can ignore the statute no your honor we want to characterize it that i am because what you ask will you twenty four come from then we have decided that the government's remedial  and tribute of purpose as i understand you picked the number yes government picked a number the government could have could have used some form and come up with one hundred dollars fine right we disagree with that your honor the way they are ar our construction of the statute is that a penalty is imposed per claim and that we have and that the range of that penalty is established by statute and the court has no discretion to depart from that range however a relator or the government can ask for n i again we must respectfully disagree on everyone else could it be then if the court at the statute and puts an obligation on the court how does the court not follow the set yet again because you ask him not to again you're out of this the court is in our i mean you get under water authority does the does the there's one argument that the statute calls for a minimum payment of fifty five hundred dollars and in this case that would amount to fifty five million dollars yes that is what the statute requires that it looks like what the statute requires under the statute that hasn't been our position through i'm asking but i'm asking isn't what am i missing that the statute says minimum provide lation is fifty five hundred of prosecutorial discretion the government were decide to see what's at the lowest possible number the government could ask for fifty five hundred that's what we just said so you think fifty and if the government asked for fifty five hundred ethe think the court would be b by that number that that would be the issue before the court whether that's i didn't ask you what the issue for the court is i actually oprah's ition on that issue if you asked for only fifty five hundred then you think under the law all the court is required to give you no yes that's correct you are just again i see i'm not making any headway with this point assuming that the number that the court has to start with this is the fifty million the amount the minimum penalty per every false claim established a trial and not and those numbers are not in dispute the question of the court's remedial discretion really is the same if it thinks fifty million dollars is too high is it obligated and is and is a constitutional violation is it the amount that is required by the statute as is true in any severability case any time a court finds that a statute is unconstitutional it still has an unflagging obligation but if it appears on the constitutional question the question then we have is we're goes back to to go back to the fifty years ago back to twenty four or go somewhere else if it airs on the constitutional question again our position throughout has been that you start with the big number offered by the relator and the government again and the court does not seem receptive to that argument then if assuming that the court is correct on that then it goes back to the fifty million fifty million plus you get but that can't possibly be right under a constitutional violation for if there's a constitutional violation for excessive fine that the if we were to say that why would we go to your number of twenty four what's what is that as that might be something you look at but didn't the this go wouldn't it w but yeah but but no but what i thought what you said when we turned to the constitutional question you said it would be the same result i thought you said or you would apply and desist clarify this yes or if there's if if in fact is there is a constitutional violation of excessive fines at the fifty level yes whatever that number is violations times fifty five hundred yes or no then twenty four doesn't control twenty four million doesn't control anything at all knowing the court would then decide what is the appropriate number your argument is a court would have the authority and would decide the appropriate number of the fine to impose a fine that did not cause a violation of the excess was while the court might look at twenty four the court then have to accept it could go anywhere below fifty five basically subject to our review of that number now would we send it back to the court under the access to find a theory to have that are going on in the remand is certainly open to the court once i didn't ask you lose open you don't have to tell us what out there already is we know that i'm asking what would we would just plug we would pick a number you would you would apply the constitutional  either way we believe reversal is required here the excessiveness standard that the the court applied below is simply and correct the lead case on this is the supreme court's decision in the case i'm sure to mispronounce but look to the sentencing guidelines to fix the objective measure of the harm and in a bid rigging case the sentencing guidelines don't look to the damage the provable damage of the bid rigging because that's always impossible to derive with precision what they look at is the volume of commerce affected and the sentencing guideline to r one point one d says you assess twenty percent of the volume of commerce which in this case would be an eight million dollar contract by twenty percent get you to one point six million you make that argument to the dish yes and the one point six million dollars is in turn multiplied by the ten times multiplier that the district court acknowledged applied from state farm that gets you to sixteen million in us versus a mob this court applied a seventeen times multiplier on a forfeiture and this is enough to establish the twenty four million dollars that the government asked for as under the ceiling but if you find that twenty four million may be too much you have to remand it to the district court to assess with a view to the objective standards of the sentencing guidelines because eleven thousand dollars is not enough five hundred thousand is not enough because the court said that's what he thought would be was the appropriate standard but that's just judicial legislation that's like a substantive due process argument showing up in the eighth amendment context but one point five million is not enough because this is the ten times multiplier times the imputed one hundred fifty thousand start with the sentencing guidelines you look at the volume of commerce of that contract and you derive the constitutional ceiling from their and if the court has no further questions i thank you very much for the time  please the court good morning i'd like to begin by addressing something that i think that mr claridge argument crystallized in this court this morning which is the argument that godling made with respect to the invited error doctrine the argument that the government is making on appeal with respect to this excessive fines issue is the opposite of the argument that the government made below and for that reason as well as the reason set forth in our cross appeal with respect to standing in the appointments minimum in the statutory minimum very clearly under this court's opinion and harrison is fifty million two hundred forty eight thousand dollars that is that that's the status quo you know you exercised prosecutorial discretion and reduced the claim to twenty four million from the fifty meant to that is what they're asserting now and on appeal you're on but put here's what that crystallizes what that crystallizes is their position below it would rest in the district court that was addressed no party below contended that the fifty million dollars penalty mandated by the f c a would be a constitutional amount on the facts of this case no party contended that and in fact when the relator originally requested the twenty four million dollars penalty claim to twenty four million which the district court expressly considered as as your honor recognized and also as the court recognized there was no principled application of the statute so mr claridge argument today in response to judge sheds prosecutor if that's what we don't have prosecutorial discretion that's right and that's the argument that we made in our briefs as well your honor and below again the relator prosecuted this case or brought this case from the get go and the government did not intervene until this appeal so when i'm saying the are acting on behalf of the government well the relator also has its own interest in the case your honor and simply the point that we made in our briefs and that i'm making now is simply that there's when we're looking at prosecutorial discretion what's relevant even in a criminal case is the stage at which the discretion is exercised and here there wasn't actually discretion there was no principled application of the statute and judge said specifically asked mr clair what was the says that the false claims act gives the relator an interest in the suit and for standing purposes which is what the mine agency case was focused on in that section the relator would need separate standing apart from just being an agent of a government the attorney general and the government has a right to come in as the way they work well some of us have been involved in some of that stuff sure and even if that's the case your honor i think that the point that i'm trying to make your i mean the government came in here discretion well what what what i'm saying your honor is based on what judge trained us said i believe in footnote lines on principle about the govern what the government did in reducing the claim from fifty million to twenty for me what evidence do you have here that they act unprincipled way your honor what the court said below when when it looked at the the application was that the penalty the twenty four million dollars penalty does not result from any principled application of the f c a as it is not a multiple of one thousand one hundred thirty six and any number within the statutory range of five thousand five hundred and eleven thousand dollars rather the penalty appears to be based on nothing more than what the plaintiffs think is an appropriate number under the circumstances regardless of that though the reason that i raised this issue is simply to to crystallize what they were actually arguing below and i think that the court was addressing it in the questions to the government do you think do you think there was a question of excessive fines raised below absolutely yes you think there's a question of excessive fine raised in this bill there is not a question of whether the fifty million dollars statutory fine would have been excessive and that by the way  the fifty million is all they will they reduced it to twenty four the court wouldn't have had the authority on its own to reduce to twenty four and as judge trying to even found the only authority but whether the fifty million fifty million dollars is in play because that's the basis on which the court has to say as if there was an excessive fine in this case that and that's correct that's current so i don't know if suddenly the day got to be two different trains and maybe it should be but there's just talk about the excessive fine issues you understand it if the excessive fine issue was in this case which it is and if it's properly raised on appeal which you may argue about but let's say it is before us that isn't the question the statute call for a minimum of fifty million dollars fine in this situation we have to decide if that violates the excessive fines provision is that the issue if it's properly before this court yes there's an issue yes and what the with the good that is true that twenty four million dollars has really has nothing to do with anything that's absolutely correct and in fact what the government argued below was the court has no discretion on its own none to impose a penalty below the statutory minimum of fifty million essentially we're arguing that if you want to get our must do what the court do if the court found that fifty met with the court did do it was an excessive fine issue wasn't it yes and it was an a applied challenge to what way but then the court said the fine would be zero because the court understood it couldn't adjust that minimum is that how you that's what the government argued and that's what the court found under the harrison case that it could not a judge dollars to save the the statute as applied this case from a constitutional excessive fine issue no in light of the harrison decision i think the court that what the court though i think what the court what the district court here said was under this court's interpretation of the false claims act which requires one penalty to be imposed per claim and the government even today is emphasizing it was not known that want to move on to the rest of the argument but the court but if that if the application of a multiplier leads to an excessive fine you have to do something to correct it don't you in a case where a portion of a statute would work in unconstitutional i don't know as a yes or no well yes but the something is not enforcing the statute severing that that portion of statute what do you do with your fine when you have a multiplier and the multiplier times the fine times the number of violations equals a humongous number fifty eight hundred trillion dollars is your all is that if a fine is so big based on the normal way you calculate a fine if it gets to be so big you win if it violates the excess of fines because of the number has to be zero it's not that the number has to be zero the number ends up being zero because that portion of the statute is severed out and not enforced but it's not just in bar remedy for an excessive fine under statute if there's an excessive fine the remedy has to be the number goes to zero option one is that that portion of the statute is not in for the number would it go to my question is that what you're telling us if there's an excessive fine calculation in a case based on the minimum five times a multiplier if that number appears to be  excess of fine the constitutional remedy is that the fine imposed must be zero that is correct your honor because on an as applied constitutional challenge that portion of the false claims act the penalty provision would is the court's first alternative which is the one that is most consistent with the text of the false claims act it's not consistent with the government's argument below and it's not can you know what though would you notice on the question you had a lot of editorial comment which you let you do that little bit you just told me it had to be zero now you're telling me there's an alternative so if there's an alternative it doesn't have to be zero the answer is it does have to be zero your honor at the end but it's not that it has to be zero dollars it's that the penalty if there is a a portion of a statute they want to stay in your theory on how you get to zero ok but that doesn't change your answer to the court that the fine has to be zero yes and if and if the if the that's right that's it and that's exactly what your idea remedy for an excessive fine is not a reduction in the fine it's severing and declaring unconstitutional in this as applied case severing and declaring that part of the statute unconstitutional as to this defend but again whether we say it looks like because gosh you can't find somebody fifty may is got to be zero or you have some theory about this that you becomes unconstitutional severed and that provisions unconstitutional the net effect is case the excessive fine analysis is not just a comparison of the dollar make any difference then making difference what it is or is not your position is that if there's an excessive fine in in this case yes as a matter of eyes because they know what that does what he asked you it is your argument then says may be right if you're going to violate the law violate it so much you're too big to fine that's exactly where it may i respond to that sure sure the the problem with that argument is that it completely ignores all of the other considerations that basha kaji and says have to be considered with respect to culpability and agree just miss if the defendant is found to  purposely raised the number of invoices and their scienter with each of these invoices and they say look by design we're going to just submit a ton of invoices to try to avoid this fine issue and get that number up really high you have the opposite of the situation here you have substantial aggravating factors that would then understate farman of the supreme court's holding in state farm would justify a much greater ratio of penalty to harm and so that's that's why i think that that argument in your scenario which to some great number yes and that number in your scenario created an excessive fine that provision of the statute would be severed as unconstitutional if it showed theory it probably wouldn't constitute  the fifty or the twenty or the fifty million euro you say the court did bond to fifty was was constitutionally excessive it did yes and that was with a comparison and this actually gets to another question that the court has posed this morning that also gets to what is the starting number and under budget and all of the other supreme court jurisprudence on this the starting point is the statutory minimum it's a comparison of the statutory minimum to the harm both tangible and intangible including culpability it's not a comparison of whatever number the plaintiff requests it the excessive fine analysis is one about whether the statutory penalty is it is excessive and i do want to respond to your honor with respect to the  you would do that because the court below already has done an analysis as it would be required to do if it had erred and was supposed to go below the statutory minimum that's not a basis to send it back might be a basis to accept his alternative isn't it bad well yes and what i meant your honor i should clarify i apologize what i meant was to send it back for imposition of the alternative oh yes i'm sorry but i don't mean to send it back for any form no writer it's our job or we need to send it back what we just  alternative which is imposing a penalty for the f c a violet of conduct that's the penalty that's the most consistent with the text of the statute you have a number you have a number oh a dollar number if yes it was a penalty that the court imposed for eleven thousand control no why don't they control i would point the court to the state farm case again the state supreme court and state farm expressly talked about the existence of criminal penalties and said that while it bears on the seriousness with which the court which was congress viewed the conduct it has less utility for determining the dollar amount and they said that the supreme court said that great care must be taken to avoid use of the civil process to assess criminal penalties that can only be imposed after the heightened protections of a criminal trial have been observed including of course it's higher standards of proof about a civil for following known to a criminal action what about  you know how you have a criminal action sometimes you'll be a civil for as part of that do we compare do we look at the in the guidelines for that type of procedure as guidance for this no your honor what we look at is what all of the court assessed the false claims act have to including this court have determined is the appropriate measure under the false claims act which is it starts out with an analysis of the overpayment and the only reason that we're even looking that the that the relator has even want this court to look at the sentencing guidelines is because there wasn't any money damage in this case so they're looking for some other way to put a number before this court to make a comparison to the fifty million dollar s statutory penalty but we know there were your honor is identifying the intangible harm which judge did recognize and his second alternative was what he determined to be an appropriate penalty in this case for exactly what judge judge can you identify and that penalty was five hundred thousand dollars number of what he was found liable for not a two hundred balls bill as judge articulated the nine thousand one hundred thirty six invoices are deemed as a matter of law to be false claims are false and not your hundreds false claims that the united states what theory of application the law is that even if you cheat a little bit in one thousand times it's not bad no your honor what area this case is that god didn't cheat at all with respect to the nine thousand one hundred thirty six they're deemed as a matter of law to of the case you said we need it mid nine thousand one thousand one hundred thirty six invoices that are deemed to be false claims but as that the court recognized below there was not independent so i enter on each of those and your view is your view is having submitted nine thousand one hundred thirty seven or whatever the number is false claims the appropriate resolution for fine should be eleven thousand that's correct and it's because the culpability was limited what the fine should be under just your normal reading of the law when the statute you think the fine is eleven thousand dollars that's what it should be found to be and that's what it is and hits there's no excessive fine issue here oh no your honor under harrison there's  an excessive fine issue in this case if the million dollars yes or no yes but you think the only appropriate remedy is either zero or eleven thousand oh yes but but  and you have a theory in either case but your argument is that it's only appropriate that your client pays zero or eleven thousand dollars yes or no i think that that's a fair summary i  briefs sang the twenty four million dollars was an appropriate fine and not all of it was that appropriate did you ever concede that the fifty million was constitutionally excessive under the existing bonds we did not hear on our hope was to avoid what i saying that issue before the court and therefore we did not ask for that and that cost of it that the point that the government the assertion that the in government and vide at this air we have argued throughout the case that at least in twenty four million dollars is an appropriate fine we have argued throughout the case that there's a difference court's statutory authority to award less than a minimum fine for penalty and its constitutional authority to take your constitutional violation by ordering a reduced fine there is ample authority for that  under statutory minimum but i hesitate to venture into this territory again your honor but you know our position is our position is we have the authority to decide what issues the place before the court your honor that's how we see it and anybody but answer my question is  is it your position that in looking at if the government thinks is an excessive fine issue the government itself can take steps to address the excess to find the issues without the court having to address it even if that means go a little was dead story minimum set by congress yes your honor and in fact that's what we have done in this in this case we had hoped to avoid placing the constitutionality of the entire minimum on before the court your honor i let the last point i'd like to make today is that the supreme court's precedent in this area makes clear that it is congress that the term and the appropriate culpability of an offense and what you've heard from the fans this morning is that they didn't really do anything wrong this situation quite specifically it identifies a fraud only procured contract and says that every claim submitted under a contract is a comparable act it carries with and in additional  this court in every other court of appeals to address the matter has held accordingly that every submission of the claim under a fraudulent when the procured contract is a false claim to which a penalty attaches as to the appropriate number were fined six million dollars this is a course of contact conduct here that went on for three years and created five countries a much broader scope and much longer duration of misconduct for a violation of the criminal side of the false claims act alone there is a potential not only a fine of two hundred fifty thousand dollars or double the amount of loss to the victim but in addition a maximum penalty of five years imprisonment that is incumbent on the court to come up with the rim of the two that constitutional valise if the court finds a constitutional violation yes your honor it is the court's job to read the court file a constitutional violation in this case yes so then why it the courtroom a d and not your suggested remedy that resolves the problem well it is the court's authority to impose an appropriate constitutional ramrod and consider the fact that wait a minute by the way and i agree with that one hundred percent but that doesn't mean then that when the court have to then decide if your number comported with the constitution that's certainly something the court can consider it's not bound by our number but the fact that the law meant no moment no deloitte wait wait one second i it takes the constitutional violation for us as a fine off the table without that what that was our intent here are obviously we're not successful in that because we submitted a let's say isn't that your position opus ition that by setting the number twenty t crossed so so your theory that you asked for a lesser number in light of maybe some issue about excessive fines really doesn't mean anything because the court was still have to independently review the twenty four million dollars the same way it would review the fifty million dollars that you're on exactly correct or not it is correct i would they are carried out as i don't think it means nothing at all i think it's something that the court can consider in arriving at an appropriate let me say this that it when i say it means nothing it in no way binds or limits the court's review and this question correct yes your honor we certainly agree with and so then let me ask this to me your strategy again to why you put that number out there well your honor because it was an honest out what the court had to do it was just make you look good in front of that i think your honor i think you know prosecutors as well as planned have sarwari of over pleading a case they want to ask the court for a sanction that is reasonable upset right there you just told me that you were twenty four million dollars does not avoid the constitutional question you just said that to me it doesn't avoid the question however it is a constitutional amount is are are sorry but but but but my point is this but that doesn't in any way affect the fact that you all for a lesser number does not in any way change the obligation of the court to to assess what it does and how it resolves a constitutional violation of the excessive find provision that correct yes or so then the remedy the court start it with the mandatory minimum under though i doubt it as to the twenty four million north and not so you think the course arrow was first in not looking at your twenty four million dollars as a five that was it acceptable to you yes that's  court has to novo review over that question and the of the argued anywhere that the fifty million is constitutional if you have said that unless you are you saying that this today is your position that the fifty million dollars fine is constitutional that is it below or to us that you believe the fifty million dollars is absolutely devoid of any excessive fine issue you have taken that position not devoid of any issues that's not to say that it was analysis that the starting point isn't all that relevant we had to hold the present what we thought was a more reasonable request to the court i think that the amount of the government's requests the amount of the related requests is a give the court two page cites to the court's opinion below appeal is it going to it's it's on it's on there's your honor but it's directly addresses the question that the court just asked if i could just give to page cites the twenty four million dollar penalty was expressly reviewed as to whether it was an excessive fine by the district court at page thirty two of the opinion it's a joint appendix page sixteen fifteen additionally we already said our position with respect to the criminal fin but the court also considered the criminal issue that's at page sixteen six sixteen zero six is criminal and the twenty four million dollars was expressly considered and rejected as an excessive fine and sixteen fifteen and and further of the court had asked their alluded to the other issue that the government had raised with respect to the land and raid agreement immunity in the shipping act i don't know if the court had any questions about that but if not then i'll just move to our cross appeal that with respect to the d p m claim which is the claim that gave rise to the excessive fines argument we've been discussing standing the appointments clause and the take care clause in this case the relator pursued only civil penalty penalties they abandon any economic damages claims pretrial by seeking only penalties the relievers were attempting to vindicate the rule of law as the supreme court described it in steel co and he's they were asserting a sovereign injury  court jurisprudence would really mean nothing the precise issue in those cases was the whether a citizen suit provision in the statutes that issue there were proper and the courts found in those cases that they were not because it was a sovereign injury and a generalized injury that was being assigned and there was no standing conferred by virtue of it the only difference in this case is that the private party can keep part of the civil penalty has a bounty essentially for a successful again uniquely is only pursuing civil penalties are significant because it means that congress could easily invade lou hign steel company and all of those other modern standing jurisprudence cases simply by creating citizen suit provisions tied to nominal bounties anyone could be authorized to bring a suit to enforce the law for any reason civil or criminal and that issue elucidates the appointments clause and the take care clause problems here the appointments clause of course ensures executive control over core executor you have briefed all the right