foremost is the channeler and stevens decisions and as you know earlier this year the supreme court came down with his chain with decision and we asked for stay in the briefing because they thought that decision was quite important in this instance because the mention the fact that both stevenson channeler did not make a couple of holdings which are urged on this court number one is that there's no mention in either of those cases that the restricted definition of person to exclude states or state agencies that that is meant to include in any way any regions of the state there was also no finding up about whether or not states have sovereign immunity under the false claims act although that was briefed in the case the court went back on the statutory construction issue rather than making a finding on that we're certainly pointed out in our brief that we think that there is no sovereign immunity and certainly we have disputed that stevens can be used as a holding to that but it is certainly our position that even assuming that states have sovereign immunity under the false claims act the court must follow the arm of the state tasked to somehow branch that and unity over to a private corporation is whether or not a judgment against them would be paid for from state funds and that is clearly the most important factor and that certainly would not apply in this case any judge would be paid by this private corporation good  university authorized them a new or at least knew this that was false was the representation i was going to be made then what would that situation in which they were agents say is possibly a situation where they might be agents but first of all that's not what happened here but even if it did the fact that you might have an agency relationship does not give them some type of immunity which is where we have to come back to we have to find some way to provide some exclusion from the false claims act and that to this private corporation and i don't believe the agency does that i think that even still regardless of whether you find that they were not an agent you still have to meet that five prong test to determine whether they are entitled sovereign immunity which i think are two separate issues and yes i think you could have an agency relationship but still not have it in arm of the state and i think many of these cases that deal with an arm of the state are that if you really looked at it probably situations where they were agents of the ag one case that we cited i think is if you look at what the port authority i think it was was doing there probably were an agent have that here where there is either a contractual right think an agency obligation to indemnify them and certainly that does not transform this into something that would require an arm of the state and for sovereign immunity that should apply t min i don't think so your honor i think that the false claims act is very clear that an individual or corporation is libel for any submission of a false claim whether it's in agency relation or otherwise whether it prevent and that's exactly what happened here we are seeking to go after this corporation for their own conduct and to many of these clients there is no immunity that has been put forth here they are indicating that sovereign immunity doesn't apply a material misrepresentation in this case i think the facts show that this was a reckless disregard situation where they simply made representations to the government without sense of checking of facts and reckless disregard of would give in to this case is that right well as a juror are probably well knows there are a lot of these kind of cases brought and they are brought before the the government we do have limited resources we can't get we bring suits against for the most part contractors our own contractors included if we were to suddenly go off down the road that agents of the state or of the united states for example could not be sued under that ahead as to whether or not the state employees sued in their individual capacity or other such people could be sued those are difficult questions it's not presented here this is really instigated the letters i asked that they be written so it was really for a benefit to the state and not to the contractors and perhaps federal money and so forth cements a false claim as to building something that was not authorized but here we've got a direct representation of something from improper yes all the government is here is to you to reverse the district court's jurisdictional question and then we think i guess in due course it would go back on the factual issues of whether or not they submitted a false claim or not the university slightly different case i think the principle is the same the university was going to be reimbursed by the department of energy so they would not be directly libel and so the read the cases that mr brown recently described those are not agency cases those are cases where private intimate became the principal this your honour's is an agency case it's an it's an agency case what to do and that's exactly i mean exactly this case and just by way of critical factual background this is a case where d m j m did not come into cal state northridge until a letter requesting the twenty million dollars the cal state northridge received before d m j and was brought on board those twenty million dollars were in the fold in one thousand nine hundred four in response to an april one thousand nine hundred four letter that in all relevant particulars mirrors the language of the two pieces of paper at issue in this case in the first and then a complaint in that's right well i hate to hear your honor talk about riemann and in our brief we've talked about how this case whether decided on precisely the basis judge marshall decided on or on alternative bases advanced in memorandum and latter are submitted to thema cal state northridge is vice president d m g am's randall duncan and siemens reelin will soon meet during that meeting and offing and femurs wilson told vice president albert in the presence of pm james duncan that will be fine submitted after that what was done is vice president albert directed the d m g am employees to send that report with a cover memorandum that was identical in relevant particulars to what mr bill chatham had written in april the only actions complained of were actions directed by cal state northridge actions condoned by house state northridge and actions specifically ratified by castrate northridge the vice president there is a basis on which a righteous lawsuit could have preceded it just one available in this evidence here is what statute and judge marshall spoke to that in her opinion she took the stevens case she read this course decision in line with b and she realized that this case doesn't begin again on who is a quote person under the statute it only begs the question where a person this case it took discovery if you had been able to present to your honor's or to judge marshall evidence that reading and gunk in the two employees in question themselves came up with the notion of but the evidence is absolutely crystal clear that they served in one thousand nine hundred six as mere messengers on these two pieces of paper they'd put the pieces of  messenger to get the word cal state northridge in other critical point again your honour's is when you have come up for oral argument you're always looking for something that's not already been written about it's a fresh idea that comes to you and i think the united states unwittingly because as mr frank candidly acknowledged you don't know the facts of the case he doesn't know what judge marshall had before her he doesn't know what she grounded her ruling  the government contractor defense arena and then says those are limited and those have no application hearing and basically wonders why should they but then the critically asks reason why they don't really apply is because you look to the rationale behind the rule and as mr frank wrote in those defense contractor cases where private corporations deri flee or derive the sovereign immunity of the united states they derive that because they are simply following specifications from a government contract to them so mr frank writes yes they're merely following precise specifications that they cannot alter or amend not a clickable in an se a case where it's a whereas with the contractor knowingly submitted a false claim to the government well that was the allegation that vice president albert and specifically welcomed by themis wilson that it's exactly the hypothetical so there's a complete convergence of the rationale in the rule i also no allegation and that was the proffered false claim that cal state northridge originally supposedly made it made that there was no intention to reoccupy the evidence in the record and that's why if your honour's turned to the alternative grounds is again uncontroverted the president tells state northridge stated we always intended to reoccupy she stated under oath that no one on the planet was in a better position than she honors decided strictly on the agency and derivative immunity question which i urge you you can and should do under the principles we've cited in our brief and under a common sense application of stephen's line of duty and the other authorities to our precise facts you can find there was no state of mind not even negligence for the ins agent to follow the direct orders where there was documentary backup that that was exactly what they were told to do now is one thing no less false if there was proof that they knew it was false it would be in the record and there isn't there i mean you elbert the vice president who told them to submit to pieces of paper when they knew he wasn't around to cal state northridge in one thousand nine hundred three and early one nine hundred ninety four when the earthquake happened they needed to call somebody to find out leaving aside the potential insubordination from not following the direction of someone who you can probably presume to have good authority for telling you to write letters to specially when you've already told fema what's coming and fema blesses it who would you call bill chaplain who has written to the month in april of ninety four and told him there was the coleman caskey report still viable answer yes or no contra declaration no contra testimony she was asked was abandonment an option answer no but in the presence of mr duncan that vis report had not been approved i mean it was not approved for funding it was in the offing but as president wilson said it still had viability if i can arguing that it should be interpreted broadly that it should include people like your client who acted as agents as a state whereas i think if you read the  capacity and how body of law as state agencies and actors who i understand your honor and i think what which she did is and you're going you can only judge a case based upon what's been written before and it's a false claim that case where you would ask yourself does that reasoning apply here because in order to maintain the false claims act suit against bill and jane chatham hell state northridge all intents and purposes based on the facts here they function they smelled like they tasted like they functioned as employees and so the distinction we argue is one without a meaningful difference i'd ask your honour's in when you go back and revisit amicus page fourteen and you go back to the authorities he sighed as to why it makes perfect sense to apply straight court claims that cases the boyle case was a supreme court case that was brought under virginia law and it was a wrongful death case justice scalia wrote in that case again you have to ask yourself whether these to insulate the government against financial liability from the judgment that a particular feature of military equipment is necessary when the government produces the equipment itself but not when it contracts for the production and the installation law full force of their duties this would be a different case if there was any proof at all they didn't jay in anything other than what seemed lawful as told to them by their superiors at cal state northridge we listen to inviting ratified by themas wilson but guterres against vance is even more to the point that's a case where it's foreign sovereign immunity and a foreign government contracts with a company called vance international to help run show in the united states and a gender discrimination suit is brought against that private corporation the fourth circuit again applying common law agency to the precise facts before it writes imposing liability on private agents of the government would directly impede the significant government interest in the completion of the work as a result  derivative immunity to private contractors particularly in light of the government's i'm questioning to delegate governmental functions that's not an arm of the case in the house arm of state analysis it's an agency analysis had occasioned the wrongful termination in that case but the proofs that were before the court in deciding the case we didn't know the action in play was strictly the action of the sovereign principle as in the boy case as in this case and so your honor is blind the gate clearly stops short of specifically addressing an application to  was looking for any reason in the record at all to find d m g the ins and libel for its own actions for its own initiative in perpetrating a supposed fraud you couldn't find any basis in this record there wasn't a fraud there wasn't a state of mind and your honor we'll be able and confident to apply the common law agency found in for oil and buyers against approximately fifteen million dollars that they were gaining from the contract that they had as operating as the construction management firm for seaside they had an incentive to help their client who they were under contract with to make sure that eyes the federal monies that they were getting so they had millions of dollars of incentive to make sure that the customer was satisfied with them and that customer in this instance because that's what these two gentlemen were doing got the most federal funding that they could so while d m j m didn't get the twenty million dollars they certainly assisted in and see so getting the money and they benefited by the as i said millions of dollars over the years that they operated as a construction firm so i understand what you're saying about unfairness but they did benefit indirectly because they have a financial incentive to make the client happy and then nasa amazing federal funds in this case wrongly