may have please the court sewerage kumar for dr doug grier the district court ordered dr greer to sell his house and hand over the proceeds to the federal government that decision should be reversed for two reasons st the government's and sixteen claim alleging breach of a two thousand and seven settlement agreement is barred by the six year statute of limitations nd even if the government's claim were timely the agreement is unenforceable because it would require the sale of a house without providing a sale price how that price is calculated or when the house must be sold the government's claim is time barred based on the text of the statute and the agreement the undisputed factual record and  on page forty one of its prefer that a claim accrues when the events necessary to state the claim have occurred not when the government discovers the breach a separate provision section two thousand four hundred and sixteen dollars told the limitation period when material are unknown the government expressly disavowed reliance on that provision for the district court and it doesn't rely on it here and the government's own authority united states vs commodities export company says that the government can't unilaterally postpone the cruel of a claim the text of the agreement reflects performance within months not years the expressed purpose is to avoid the delay inconvenience and expense of protracted litigation and paragraph three the false claims act waiver shows that the parties knew how to waive statutes of limitations and didn't do so for breach of contract claims in fact the parties separately referred to breach of contract claims and express carve them out of the agreement paragraph when the agreement was reached in july a believe it was signed two days before mr greer sentencing on my or doctor correct about that yes your honor so it at that time the parties didn't know what his sentence would be correct that's correct your honor in the parties didn't know whether he would be stepped back or re mandan in the custody after his sentencing is that correct yes your honor i would one thing i'd like to say though is that the government  want fifty one month potential sentence an argument that they didn't make for this trick court but i think contract interpretation is about the shared expectations of the parties and dr greer opposed that fifty one month proposed sentence the the understand that but but the guidelines range was encompassed fifty one months right yet that's my understanding on a yes in a guess what here's where i'm getting at  whatever expectations are hoax dr greer had there were no guarantees in it was certainly a reasonable possibility that he would go to prison that he could go to prison for three hundred and forty five years in that he might even be remanded in custody and two days after  contract at his guilty plea in so that being the case why should we hold that the only reasonable way to interpret this is that he had a duty to sell this within six months so i'd like to suggest sort of the resources for showing that six months is a reasonable time and then make a broader point about the reasonable time analysis and this case i think the court should should break this down into time period so the st time period is between july two thousand and seven and november of two thousand and seven when dr greer was performing his obligations under the agreement that is he  paid one hundred and eighty nine thousand dollars to the government in september of two thousand and seven he made restitution payments after emptying out his retirement accounts and if the court looks at the text of the agreement paragraph two says that he shall do three things and he did two of those three things in four months that's a pretty good reflection of the party's expectations now as to the time that he and by the way i would point out that the district court's holding against dr greer on summary judgment which is really an inference is flatly contradicted by the actual performance history initial court said his life was too chaotic for him to perform the agreement but he was performing both his civil and his criminal obligations now as to the time that he was in prison  it was reasonable for him to have the house sold at that time because as the government points out in its brief his wife lived just a few blocks away and a realtor could have assisted with the sale it's not as if dr greer had to be present at every showing for the house to be sold and i think it's notable as your honor pointed out that there was a criminal sentence contemplated but the government didn't kohl the statute of limitations nor did the government make the obligation to sell the house conditioned on dr greer's release from prison and they haven't done either one of those things or the government could have exercised its in force meant discretion and waited until he left and even under our view of the contract as written waited until he was released from prison and he would have still had five years to sue dr greer for breach of contract but it didn't do any of those things and said there was no contact between the government and dr greer for eight and a half years and it's notable that you know the government doesn't cite a single case but all we have to find is whether or not it's a reasonable the proper interpretation of the contract is that there's a performance that the performance of the selling of the house had to occur within the i think it's two to two years nine months and three days or whatever it is right april of two thousand and ten correct your honor and i think that brings me to the rd period that i was going to get into which is the time that he was on supervised release the same thing that i said about his time in prison that his wife or a real target of handle the sale is truth and the district court said that he was on home confinement and that's true that was only for six months and even as to that six month period the conditions of his supervisor lease show that he was able to leave his house with permission and he in fact did as he testified at his deposition he left the house to attend his son's graduation in two thousand nine now in the face of all of that in the face of performance within months the text of the agreement and the fact that the government knew how to you know wave or extended time periods the government insists that there was this intent for him to rebuild his life based on an extended performance period one thing i would note i was going to say earlier paragraph five d of the agreement because that's something that the government sites in its brief it's at page seventeen to eighteen the appendix that provision it refers to claims based upon such obligations as are created by this agreement so breach of contract claims and it expressly cars amount of the agreement so it says those claims are excluded from the scope and terms of the agreement so the parties didn't agree to do anything with respect to breach of contract claims let alone postpone cruel or wave or extend the statute of limitations i think what that provision is intended to do  is clear from the plain text so it's intended to waive the limitations period for a false claims act lawsuit regarding the allegations settled here in those allegations as is clear from the st page of the settlement agreement date back to april of two thousand now so by two thousand and six or two thousand and seven that's when the government would have to file a false claims act lawsuit because as justice thomas pointed out in his opinion for the court in graham county the false claims act clock starts to run on the date that the false claims act that the false claim for payment is submitted and so by two thousand and six or two thousand and seven or even early two thousand and eight the government might not be able to both a determine whether dr greer had performed under the and where is the united states determined that greer violated the false claims act when you knowingly submit claims for payment for services not rendered or not necessary during the period april st two thousand  twelve but to be clear the clock starts running on the date the false claim for payment is submitted so it's just as likely that the intent was to preserve claims based on the earlier allegations the other point that i'd make your honor is that rel t claim has a separate limitations period right yes your honor depending on the date it would just depend one point was made right yes your honor and so so the other point that i'd make though about  paragraph three the false claims act waiver is that relying on that provision to be an implied indefinite extension of the breach of contract claim accrual period or limitation period essentially reads paragraph five out of the  th two thousand and six it seems reasonable that this settlement agreement would have said through november th two thousand and six i think the best implication is not you know infallible but the  case statute of limitations for bringing a suit hold him accountable for that a statute of limitations would run out december st two thousand and twelve and everything i'm going to follow question obviously but everything i've just you know in two thousand or two thousand and one in two thousand and three a false claims act lawsuit filed in two thousand and twelve it couldn't be based on those earlier claims right so i think that is is my point about what the what a better interpretation of that provision would be get it i get it but let's say that there was a false claim made on december st two thousand and six the government could bring suit with regard to that one false claim on december st two thousand and six they could bring that suit as late as sender two thousand correct yes ok and then when you go to paragraph three and we're looking for textual clues about how long the party is expected it will take greer to sell a house and section three basically says you've got a document that you sold your house and if you don't document that you sold your house we can bring false claims act that makes total sense there would be no need to add the last sentence paragraph three if the expectation  was that greer would sell his house before december two thousand and twelve because the last sentence says the statute of limitations for those claims for the false claims that statue limitations is waived at the signing of this agreement so tell me why that isn't the best textual clue we have that the people who made this in the elegantly drafted contract responses your honor st as to the point that there would be no need for the provision i think my point stands earlier about the earlier allegations nd by rule again by relying on paragraph three to extend section two thousand four hundred and fifteen dollars the court would be reading an implied waiver as to breach of contract claims even though those claims are carved out of the agreement so the parties didn't agree to do anything with respect to breach of contract claims so you're assuming you're assuming that that the breach happens if he doesn't sell a house within a year within two years but if we're trying to figure out what's the reasonable time to perform what's the reason i'm out of time to sell the house then this is not an implied waiver of a contract term it's it's  is postponing the a cruel period for the breach of contract claims in fair and in violation of paragraph d but even if the court doesn't agree with me on that i think it would really be inferring something from nothing because the parties didn't  provide for an extended or flexible time period for performance they said he shall do three things he did do those three things in four months and i think that's why at sentencing and this is at page two hundred and eighty three of the supplemental appendix the prosecutor said that the government was grateful to conclude everything at once that's what this was this was a global civil criminal resolution that's why he was making payments and doing everything except for sell the house in two thousand seven so to read a sort of alternative reality and say actually we wanted to give him time to rebuild his life or he actually had two years to do this other thing even though he did everything else in four months i don't think that's plausible i think the other point i i'm going to i'm going to ask you to guess something and i knowledge that you can't guess with perfect accuracy and i would also acknowledge that you probably don't have an incentive to guess as accurately is as you could but if the government came to him a year after the settlement agreement and said we want you sell your house and he says i'm in jail it's not reasonable to expect me to sell my house right now and our contract didn't say i had to sell it right away so we should read the contract allows reasonable amount of time for it or so my house and i just can't get it done right now don't you think anything that's exactly what he would have said and do you think that his lawyer would have had a pretty good argument at that point so frankly ron i think that would have been a tough argument and uphill argument because we would be in the same position that the government's in right now because the government would say well what do you mean the contract wasn't the contract it's not time for performance you already performed in two thousand and seven you paid one hundred and eighty nine thousand dollars in september so i think that would be a tough argument because we would be arguing for an extended performance period as the government is now without any evidence in the factual record or the tax now to be clear though that the government it's only the government was out of options right so as i mentioned the government could have in its enforcement discretion decided not to sue could have done so any time between two hundred and ninety two one hundred and sixty eight didn't do that the government knew he was going to prison didn't told the limitations period or make the obligation expressly contingent on his release from prison didn't do that either there's no contact for eight half years and i think that's why ruling for the government in this case would actually be a pretty broad ruling with harmful consequences because it would be incentivizing slobby contract drafting it would encourage open ended obligations to the government and discourage prompt recovery of false claims act claims where as  such an extreme case i think it would be fairly narrow and confined to the facts of this case my my last question is any in the evening in that record why you didn't sell the house so your honor at his deposition he testified that after empty emptying his retirement accounts and paying one hundred and eighty nine thousand dollars he just thought everything had gone away but what i'd point out is that that deposition happened ten and a half years after the agreement was signed which is precisely why we have statutes of limitations dr greer is eighty years old understandably he didn't remember much from that time period but in the words of the supreme court statutes of limitations are pervasive legislative judgments that protect not just defendants but also courts from having to sort through all this stuff when there are you know stale claims and fading memories and that's why i think  ok mr kumar you are asking us to grant your motion or summary judgment and deny the government's motion for summary judgment that was a position to work in the district court you are not saying that the determination of what is a reasonable time to perform is a jury question correct it's a question of l one other question that the time that the settlement agreement was executed the parties didn't know the amount of the fine that the court would impose correct i believe the correct the court had ordered restitution at that point and the following ultimately missed dr greer received at his sentencing two days later a fifty thousand dollars but the fine he was spacing under the lease to health care fraud claim was to excess in excess of two million dollars because it could be up to double the amount of loss correct i'm not sure of the exact details of that your honor but i think if the if what your honor is suggesting is that because the punishment was very severe the government intended to give him a longer time to perform that's just not borne out by the record on the same page that the prosecutor talked about that being grateful to have resolved everything at once the government said he stole these things he needs to get them back so i think to say that so st of all what the question implies i think is drawing an inference against dr greer but your honor correctly pointed out that we're seeking an order directing summary judgment for dr greer and there's no evidence that the government wanted to give him time to rebuild his life or wanted a flexible time period and one would think that if that were the government's intent there would be something in the contract or statement at sentencing or something you know an e mail or something like that that they could point to but this is really just an after the fact excuse for nearly a decade of delay well i guess the point i'm getting at here is that the amount of the fine in the restitution and the of that before he went to prison in november by emptying out his retirement accounts etc but that wasn't a given if the court would have needed to sell the house in order to make up the difference in as you mentioned enforcement proceedings in an for proceeding that the government could make to kind of force the sale of the house to recoup the amount of defying or restitution that can be made twenty years after sentencing or after the defendant gets out of prison so i guess the other context of this is that the government can wait a long time to act if it wants to it's probably not prudent for it to but the whole statutory scheme says that for the fines and restitution if the government waits twenty years i mean that's the statute of limitations for the government to to seek to enforce that aspect of the criminal judgment and those things were to be paid before the civil liability that was agreed upon in this civil settlement was to be  paid how are we supposed to kind of think about that in the context of making this decision your honor i think that the sort of global civil and criminal resolution actually favors a shorter period rather than a longer period and let me explain why so the text of paragraph two says that he had to do three things st then it says that the proceeds would be applied to criminal civil and and  purposes so he was performing the obligations concurrently so for example the one hundred and eighty nine thousand dollars payment that was soley towards a civil agreement it's not as if ok the agreement doesn't say ok do all of your criminal stuff st and then you can satisfy that the civil agreement what it says is you have to do these three things and out all result in settlement proceeds the agreement does say you have to pay off the and restitution spurs yes your honor but once i apologize your honor what i was going to say is that the but it doesn't so the thing that we're looking for here is the time that he had to sell the house it's right so that that isn't if if the court looks at the text of the agreement it doesn't say you can do these two things and then to this years later what i'm saying is that if he had been fined a one million dollars when he sold the house the proceeds would need to go st to pay whatever the the balance of the fine was that he couldn't pay that couldn't be satisfied with his l by there would have been six months would have been twenty years after he got out of prison in so i understand that that's not the facts here but when you signed the agreement you didn't know whether that would be the case or not that's my point if they're not know what to find the melt would be enough to find him out hadn't been in excess of what his liquid assets could cover to where he was going to need the sale proceeds of the house cover to find them out then then then the government could have taken its sweet little case in that hypothetical then yes the government would have more time but that would be under its criminal restitution statutory authority so in this case the government is acting as a contracting party and the same standards that are applicable to other private contracting parties apply to the government except to the cent they don't i think the government should be held to a higher standard not a lower standard rate so i don't think it reflects a longer period because i think if if if there hadn't been an intent to have this drag on for years the prosecutor at sentencing wouldn't have said that the government was grateful to have concluded everything at once and the government wouldn't have entered into this agreement with the purpose of avoiding delay or a judge katz us judge walker any other we think you just should be dismissed out right st of all it conflicts with the notion that this contract should have been performed in six months this is their conclusion right out so they seem the government had filed suit for breach of contract on with just say march st two thousand and ten and they sa like almost two and a half years maybe over two and a half years since this settlement agreement was formed and it's not the least bit on reasonable to sell a house in two and a half years even accounting for the time he was in prison and so on you think that you think the court would have sat there was no breach of contract in that case because not enough time it passed for him to sell the house well think that we still would be an aide in a period of time in which performance was arguably possible within that period of time but i don't believe that sentenced the fact that he has all these restitution fine and as well as his taxes to pay which is part of his restitution and here you have not only to a sense that impact it possible is six and a quarter years and so that just so happens to coincide with the period of time this way vital false claims that say we believe that you're looking at a period of time contemplating it for performance of a section of quarter years and so here in these circumstances we we contend that this was a reasonable time for performance within that period while the other contractual point you know about the underlying false claims is that they occurred they are a have occurred over a six year period so just as plausible an explanation for the the limitations waiver on the false claims is government had claims going all the way back to two thousand from the perspective of two thousand and saddened they would have been facing time bars or claims in the earlier range of that period they would have been facing time bars right away so the fact that they act to preserve the timeliness of those order line stale false claims act claims doesn't really tell us anything about the performance time for selling the house  we disagree with that and the criminal contract says this could be a liability in the nature of a scheme there were other people involved so one criminal act as alleged to have perhaps started on one day may not have ended on the day they started and so it is certainly plausible here that we have criminal conduct that spanned a period of town starting at one day ending on another day  and so we don't we don't think that this is necessarily a situation where you have most of those criminal acts that are being analyzed pursu to successive sakshi to limitations on the faucet claims act claim but once criminal scheme is treating patients and he's billing for services that you all think are certainly but have you also have a situation where you have criminal you have fraudulent conduct that is repeatedly engaged in over a period of time and could be analyzed ok thanks held so how are we supposed to interpret what is a reasonable time for performance are we supposed to look soley at what the parties thought as of the day that they executed the agreement yes we we think that the analysis should be confined to the negotiation at the the negotiation period of time track and what the parties intentions were as reflected by the circumstances surrounding that negotiation and and here your friend on the other side says that you can look at kind of coast executioner or you know post is recommended in the course decisions or th i should say in the court's decisions and that analysis here we think leads to the conclusion that dr greer had at least six years to sell the house and we we believe consequently that we were within this is sheer limitations period of the town we sent him the demand letter and ultimately now file suit in this matter now is just so that i get the government's position clear on the record you have asked us to affirm it appears that below you asked for a summ judgment of course and you are not saying that the question of what is the length of time that is reasonable to perform under the stand for the proposition that court should not consider evidence from conduct occurring before the contract was formed or do they go beyond that and stand for the proposition that the court can also not consider conduct after the contract was formed i believe it does go to conduct after the contractors for particularly in the in the actual performance period that the question is what are you trying to do and circumstances of their country interacting and and certainly the best evidence of that is what was going on at the time of the contract signing here july th twenty thousand and seventy two days before sentencing again he's facing a lot of time he's facing a lot of money and that his own attorney if you look at the language of what he's saying his own these payments and this isn't a contest of players and discuss them interest penalty as well and so in that context we see statements by counsel clearly saying that we want time to pay this amount off and as well we see from the record that even if you consider the facts after the negotiation you see that he was not really able to pay the criminal restitution fine until days before he had to report to the president so he had quite a bit of work to do he was still trying to resolve his practice he still trying to liquidate his assets it was not reasonable for him to be able to do all of this and at the same time prepare his life to go on to prison  district court noted in this opinion so we think that looking at these criminal circumstances the criminal case circumstances and interpret this agreement in that context certainly l two thousand and fifteen what what took you so long for i wasn't personally involved so it was for me a an effort to recreate what exactly took place during that time it was not clear to me exactly what took place that you as an actor i did ask based on the information i learned i actually only speculate about what happened but exactly what happened in that instance  time that referred to a period of months when dr greer liquidate his pension plans i don't think that shows that three years or eight years was reasonable as to the government's reliance on claimant i think and i think this is important so the government relies on footnote forty four in claim that says that for all evidence is inadmissible when the contract is silent to show that the contract would be performed at a particular time doesn't say prolife evidence is inadmissible showed that the contract would be performed of just to show what a reasonable time would be and if the court had any doubt about what the discord in claiming was saying it could look to the colorado woman's college case which is cited in that footnote there on the court made clear that you know pearl evidence wasn't miscible to alter the written contract but it was admissible to show what a reasonable time would be and restatement section twenty dollars for comment makes the same point you know i ask you about that and i'm i'm particularly interested in following up on some questions wilkins put to you so the way i was thinking about the case is contract is largely silent on time so the governing legal rule that we read into it is reasonable time to perform and then we look at the facts on the ground to assess reasonableness and for reasons we've discussed and given the way things turned out you've got a pretty strong case that two and a half years is more than enough but why isn't it more why isn't it better to think about this as on on the question of contract interpretation you read into the contract reasonable amount of time and then you ask yourself well what would be a reasonable amount of time given what the parties knew at the moment of formation when it might have turned out that he went to prison for five years and had substantially greater  imposed and those facts would tend to show that a much longer period of time would be reasonable sure so i don't think that looking at it at the formation point is necessarily as one sided as that because i think you know if the government had won the government had all kinds of options right but the reason that i bring up the there's a textual reason that i bring up there i mean do you think it's right to assess reasonableness at the time of formation based on what the parties knew at the time information were based on how things turned out so i think the court should consider both right so i think because i think the textural point that i would make your honor is that paragraph two says that dr greer shall do three things and the actual performance reflects how the parties understood what that textual command met and dr greer interpreted that to mean i have to do this now i have to do this in september and i have to liquidate my retirement plans immediately there's no textual evidence and there's no it's not backed up by any you know concrete evidence in the in the performances tree that that was the party's intention to have a separate years long time for performance  if i could just briefly around or say a word about i know i'm over my time but our nd issue about enforceability i would just i would just say that we don't concede at the contractors enforceable because this appeal is just about the obligation to sell the house and holding contracts on enforceable for lack of a price term it which just goes to show that this court would never enforce a contract like this between private parties if anything the government should be held to a higher standard but at the very least it should be held to the same standard so if the court conclude that the government's nine year old claim is timely we've asked still at the court reverse because the contract is an unenforceable and in any event we've asked the court to reverse and direct the district court to grant summary judgment for dr