i'll refer to as ascii throughout this argument and cliff gallatin these are relator who filed on behalf of the united states government in a false claims act case the case was dismissed a motion for summary judgment from filed by the defendant mann tech as this court knows it will review nestle of summary judgment on into novo basis the leaders filed this false claims act based on misrepresentations made by man tech in the bidding process as stated in our briefs there are three principal issues summary judgment was improper given that there were disputed issues of material facts to materiality standard the natural tendency test as defined by this court in the two thousand and five a plus home care case was not applied correctly and the  opportunity to oppose the motion to exclude its expert to a report and the testimony of its expert witness i'm assuming the panel has a good working knowledge of the facts so i'll briefly summarize in order to get to the arguments decca which operates grocery stores in p x is military bases around the world ascii had this contract for many years until it was rebid in two thousand and five men tech won the identified as its program manager before the contract was evaluated david kendall sperry resigned and left man tex employment in early september two thousand  the government as it normally does of mid evaluation notices which are a request to the bidders for us this specific information and these evaluation notice is known as the ends were responded to by men tech and included changes change pages to their original bid the dns were submitted with a letter that indicated that the original bid remained unchanged but there was no indication that david kendall sperry had left the employment of mantic this was confirmed again in a letter from early october called the baffled letter or the best and final offer letter in sept i don't want to deprive you the right to present your argument  you sure i mean you might want to grapple with the evidence from the other side the testimony from numerous persons involved in the evaluation process that this identity of this individual was not that you know they routinely replace people etc or think you sure as this court knows materiality involves mixed questions of fact in law in criminal cases materiality is a judge decision if that holds true in civil false claims act cases a judge will make that decision as well in this case the judge decided summary judgment but  improper under the circumstances because the judge made a determination as to of fact that we contested for example  presented evidence that two of the evaluators miss right in this johnson relied on the identification of kendall sperry when they gave mantic the highest marks available for technical and management capabilities wright wrote a paragraph about his skills saying among other things that he outlined in organized programs to meet or exceed d o d or department of defense guidelines miss wright was not talking about a myth or a placeholder she was talking about an actual person mr kendall so you know i think one of the one of the questions in this case is yes that in the record but you know what's the import of that it's it's if you look at the record as a hollow it's not clear that that i mean of course they read what that that was not determinative but i mean what you're looking at it with you looking at it as the representative of a representative employee representing the quality employee of the employee jimin could be expected to bring to the task but that's put in perspective by other evidence in the record so i mean i wonder if it's i wonder if the inference to be drawn from it is the one that you suggest well we certainly think that there is an inference there because both mr wright and ms johnson spoke highly of kendall sperry as a person what they didn't know at this critical time was that kendall sperry wasn't there mantic has tried to define this case as his continued availability that's not our argument judges argument is that at a critical time when the panel was the evaluators were considering mantic they were looking at key personnel like david kendall sperry they praised him and his noted his credentials and that's why they gave mantic high marks in that particular category the most important category being technical and management capabilities another of his right also testified that the resumes were quote only a reference to show that they're qualified personnel that are capable of doing that position he acknowledged in her summary that that's what what the team leader mr walberg told them yes and i guess from that perspective the way you could look at it is the the they represented that there was a certain individual and that individual's gone shortly after they made that representation but it is long as they have the capability at least from the perspective of what some of the testimony the record is of the decision makers it's not a misrepresentation because they had the capability and that's what we're concerned about is decision makers do they have the capability and as long as they have the capability we're not bothered by that that seems to be what they what they've basing what they did to because in the in the end they they after they got the information they continued to approve this company yes that is man tex argument certainly and but yes why is there a better answer why isn't it correct it's not correct because it was that the panel made a decision and that decision was to award the to recommend the award to mantic but it was based on these this misrepresentation about david kendall sperry at a time when mantic knew that he wasn't even an employee of keyword there is based on and i guess the concern that there were raising in some of the questions is that this evidence seems to suggest that it's not base it was not based on his curtain i mean what we're saying idea that he personally would be doing the work and what we're saying is that that was improperly decided on s weighed the evidence and should have heard the testimony even if it's a judge made decision well you know if an issue like materiality is an issue for the becomes a question of law because it's a question for for the court and it's you know it's not it's not a not a fact issue in the classic c it seem out of context we're talking about materiality i understand we don't have any case law that says that in this particular context but we sure treatment to reality that way in many many many other contexts and i'm assuming that materiality will be a judge decision as it is in other circuits as having been decided in civil false claims act cases but all were saying is that there was disputed issues in the judge should have allowed that to go to trial and allow that deal but instead come in with the motions still pending but should have heard the evidence  so we've got a lot of testimony here from the various decision makers yes my question would but and some of it i suppose you might characterize this as a subjective after the fact you know justifying what they did as opposed to what they ordinarily do in this circus it was there any reason to think that all this testimony about sort of the hindsight look at what happened in this case isn't what they always do is there any reason to suspect that that to the extent the testimony here is focused on this event as opposed to their general policies that there's any reason to doubt that that's what they would do in every case what we don't know what they would have done had they known th sperry was no longer employed by mantic what we're saying in our argument on the application of the materiality standard is exactly that judge down that it was outcome based that it was based on the decisions made years later the testimony rather of evaluators and decision makers who looked at the case from two three five years later and that's exactly what a plus homecare says don't do but when they don't we don't we don't care who the specific individuals we care about the capability is there anyways and to think that that isn't what they say they do in every case i don't i don't know what they would do in every case in this case there were unusual facts you had an individual that they praised that they identified as the key personnel they talked about in their summaries and yet he wasn't even employed by mantic he could have been employed by ascii for all they knew but they made and that's what we're saying is that summary judgment was improper we're saying that the materiality standard was applied in correctly because it was looked at things that the effects of that was just the best evidence available to him of what an objective person would do and then given the fact that he cites the right standard i mean he certainly it's not inappropriate to consider what actually happened as evidence of what a reasonable company would do well i think what judge watson didn't do was look at the did itself the papers require that the bitter power the technical and management capabilities the decision of the evaluators was made upon at least in our estimation the credentials presented by kendall sperry and that's how the decision was made my time is up i see  the false claims act the alleged falsity must be material to the government's decision to pay the relator is in this case twisted because this is a fraud in the inducement theory and treated as though the only issue is whether the alleged false statement was immaterial to the decision to award the contract and they argue that it's a role an anything that may have happened thereafter are you saying then that their argument fails because we just look at whether it was a false statement that induced payment and there are already your clients already been retained there doing work so of course are going to get paid the antecedent misrepresentations are irrelevant is that your or no my point is your honor that the the alleged misrepresentations were brought directly to the courts but to the government's attention in real time when the brief filed in the g a o will by ascii and its protest was delivered to the contracting officer who testified in this is undisputed that she had an independent obligation to consider those allegations and determine whether that contract award should stand and that she discussed it with others and that they determined in real time not how late last night how long after the award determination was again this is within a couple of months of the award determination ron and it was before performance and stark but let me ask this the so if i take this take you into the language of the a plus home care case issue here is the key language  false statement or conduct as material quote if it has a natural tendency to influence or is capable of influencing the decision of the decision making body to which it was addressed then you're saying the decision is the decision to pay not the decision to retain that is correct supreme court's that because there had been fraud in the preacher man of the contract which went undisclosed to the government that the fraud didn't spend it solve that it continued through the presumption of the invoices and the payment and that of course makes perfect sense but in this case even if you assume for the sake of argument that there were false statements in the award it's brought to the government's attention to the responsible decision makers proposed manager and the government specifically approves miss cali before man tech commences performance and under those circumstances when what's happened with david campbell sperry is completely and utterly immaterial what about the evidence i mean not the evidence the argument that it's it's not wish to address and my response is precisely the one that you suggested earlier which is this it is true that the test is a natural tendency and that it is the impact it would be had on a reasonable decision maker but in terms of determining that where you've got actual evidence of what did happen and no evidence that the government decision makers were being unreasonable then the best evidence you could easterbrook in which judge easterbrook explicitly made the point that if you have a government decision maker who was asleep at the switch but that of course wouldn't insulate the false claim and i'm prepared to agree similarly that if you had a government decision maker who was some whole corrupt that wouldn't do it but where you have government decision makers who are reasonable who don't miss it's not like it was stuck in a piece pile of papers delivered to him but where the issue is put squarely in front of them and they address it then the best evidence of the natural you thank you your honor i want to distinguish in on a couple of us which was relied upon by judge watson in his opinion it was a false certification case so in a sense it really parallels what happened in our case the government the the case young accomplice said the government's decision to pay when it had knowledge at the time it was asked to pay based on a certification  wiped out the false claims act because the government already knew that in young a coke lists the e p a the economic could just mint clause was not in effect in the parties knew it and the government knew it here in this hopeless the decision to award was based we say in part on the credentials presented of david kendall sperry the government didn't know that he was not even employed by mantic at that time that's the critical issue you could very well be correct that it's a citizen was based in part on his credentials but but yet be wrong in inferring that  it was based therefore the idea that he'd actually do the work and i mean that's were not seems you have an awful lot of evidence you have to go against to get to that second therefore and what we're saying is that the standard imposed by a plus homecare means that you look at the statement at the time it's made not based on decisions made years later to the reasonable objective decision maker what about but that was that all that evidence is how only relevant to what is the it doesn't mean that doesn't mean it means that's not the ultimate test it doesn't mean you don't consider all the evidence is going to the tails it's our position that it was improper on summary judgment the judge should have heard the witnesses and made a decision based at at trial on that issue and i see my time is up and i asked the court to reverse and send the case back for further proceedings thank you your honor we appreciate the argument about the view given and will consider the case carefully