commercial marketplace the anti kickbacks and ship a submission this morning is three fold and very briefly st as a matter statutory  word hearing should be construed consistently with its ordinary meeting nd a hearing we submit would demonstrate that the government has acted inconsistently with the will of congress and it has in effect sought to bring about a proton to repeal of the anti kickback statute rd under the taliban of the circumstances here the government has conducted term hearing as use in this context in the swift case the d c circuit suggested that a hearing is simply a way to provide the key town relate or with an opportunity to persuade the shall have a hearing i mean you all hear it in front of the judge so that sounds to me like a hearing why did you ask stay with the hearing and were not allowed to do it was not an evid procedural due process the way the case unfolded was the filing of a motion to dismiss original papers of that motion to dismiss and i want to hold off the declaration this is a two page declaration two pages to support the original motion to dismiss for paragraphs went to the structure and methodology of n h ca in this process conducting witness interviews we were prepared to address all of them but what transpired was essentially an oral argument that i think demonstrated to  first that the swift standard as i was suggesting should not be followed but secondly that based upon the papers that the district court had before that and the dramatic turnabout of the government which had in its moving that you know i respectfully i didn't memorize every page of the record so i didn't look at it but i want to be sure i'm look at what you're talking about can you give me the record side where you all requested to do the whole structure and thrust of what was happening in the district court was let's have an argument on these papers especially the government's position that it enjoyed unfettered discretion if cool if the government enjoys unfettered discretion there is no evidentiary hearing we had to fight them off and then as we left the hearing after the government had walked back from  unprofessional of the government to say they waive any right to an evidentiary hearing we have a white as a matter procedural due process but we also think your office we have it under the statute and the grant of a hearing and  line of district court practice across the country district court practice across the country as affirmed by at least two circuit court says we need evidentiary hearing this is goldberg to the issue of separation of powers and the policy concerns that ok were you do that i think this is a complicated case we'll make sure that everyone has an apple time but before you do that it's so that is it your position that the magistrate jed's was aware that you were going under arbitrary and capricious and in your view of the law and that you wish to have evidence presented or cross examine reason i guess for the magistrate judge to say i think we need to call for mr menino because we devastated the government's case if i may say so that's not over argument in fact what was so for an evidentiary hearing and the judge refused it or are you now saying that's what you should get concerned and i think those are two different things your sense of different things to us already which is you asked for an engineering get it also that you didn't need one because you had so we passed we still represented to the court that we have john menino here in court prepared to testify the magistrate judge did not respond at all that was our submission and why was there a submission because this fundamental thrust of the motion to dismiss was in age ca is bad and any age ca which is wrong and we've demonstrated that i think i don't think the government will respond to that or quote counsel with that and the nd thing that we said is the anti kickback statute is so vitally important and the challenge that was mounted in the motion to dismiss to our methodology with respect to interviewing witnesses is wrong and the magistrate judge did not respond to that and so and judge all right if i may just complete this i want to refer the court to page twenty three of our reply brief and in particular that it ten page which goes to these questions that i think we're going to hear a lot of policy concerns we get dressed the policy concerns of the government that valuable source of services to patients were not going to be provided under our theory of the anti kickback stance i'm hoping that we won't hear a lot about policy concerns because that's above the court's paygrade that's for a different branches we're just here to see what did congress say and what is what is so i don't think you need to right now we're just trying to get the procedural posture of the case so what was the district court informs that there was a belief that they had to be arbitrary in caprice us based upon the arguments that were made in the go we could about the swiss standard you don't want this with sander or we could have the support yes standard and we we would we don't have any precedent in this circuit that binds us in this area and that there is already a circuit split so we get to choose were going to join is that correct that is correct i would add that i think that there is a great opportunity it would be helpful the administration of justice for this court to actually harmonize i think that the kassam is not as deep as meets the eye because when one goes to judge randolph's of tenure once he said after this provocative statement about the purpose of the hearing is to convince the government to change its mind just trying to off goes on to say that miss west the relator in that case has not come forward with evidence that what the government did was arbitrary capricious lawless or tainted by fraud our submission today is that government with all respect is behaving in a lawless league here and this is the point of the policy issues that i too have to make churchill run the government is are here with a policy set of objections we are not objecting to governmental policy is interviewed by h h s they are wrong and if there's any doubt about that after reading page twenty three dollars of our of our brief which really isn't contradicted these are not policy concerns were ticketed and we're talking about the statute an if this higher standard applied you still know is so on appeal don't you have to show that as a matter of law you prevail because if there is any fact finding any discretion involved then you would lose ahmed i disagree with you put what you've just said with all respect it is we believe the law that under the totality of the circumstances the government if it is acted arbitrarily the magistrate judge on the merits of the twelve b six all this extraordinary months long effort in the article three branch went with the government remaining silent when their policy and their own procedure requires them to come forward d requires them to come forward and not waste the resources of the judicial department quite apart from the related resources but we also just want to come back to st principles under the constitution of the united states as interpreted by the supreme court of the stevens case we have a protectable property interests which the government is simply trying to annihilate for reasons that we believe are completely arbitra capricious including expenditure of government resources we've rebutted that we believe they vastly inflated the resource allocation issue but all these things can be as your sibling circuits have done is said let's sort it out in a genuine necessarily white anything i'm just wanting to focus in the blue brief on where he made the point that he requested an evidentiary hearing and were denied damn in the district court very good i think for current i would ask that each side would get two more minutes each side because i don't know that we've heard why it's arbitrary and capricious yet well thank you one st is that the very long delay and the government's ac unexplained to lay filing the motion to dismiss all through that long summer and dave through the spring of twenty eight the issues were being joined were being litigated and almost daily on hearing of the twel motion to dismiss the government of course it had its opportunity to determine whether to intervene it remained on the sidelines for almost a year before it then came in after these reports and recommendations  hundred and twenty five dollars pages and all two hundred and twenty five dollars pages plus the district court's opinion affirming that my point is this the justice department we lay all this out in our briefs and the government does not have a response or at least an effective response why did you allow the article three branch and we argue this in the district court they sat too long they violated the grandstand them out that cited their brief they violated the justice department manual that's cited their reef and your honor that is a form of arbitrary and capricious activity it is also quite arbitrary capricious that the government and we'll probably can use today continues to misunderstand our fundamental position under the anti kickback statue that is both lawless and it's arbitrary and capricious i mention the argument with respect to the expenditure of government resources when the court reviews the record you'll see littering generalities moreover if i may just make this quick point the estimate is vastly inflated suggesting that there would be x number of depositions that x number that the government says were fearful of all this burden and so forth is inflated because it was based on an old discovery order and then my final point toss benefit analysis we hear about the cost but the government has departed from its traditional practice and gauging it a bit if it's a down says and judge randolph in swift noting there's going to be a very small recovery here the government is saying even if correct the recovery is six thousand dollars here the potential recovery is hundreds of millions of dollars and the government just said well we don't think the case has merit which brings us back to their interpretation the oth counsel do you agree that there is a circuit split as to what standard is to be applied in the circuit is not weighed in on that yet i do agree that there is a circuit split and i do agree that the circuit has not technically held what the standard is for a motion they the then later analyze the issue using a cost benefit analysis and used the term arbitrary and capricious in that very same opinion so maybe there is may not be such a split  been reported to be well i don't agree with a characterization of swift at all and swift doesn't stand alone which has been reaffirmed by the circuit in a number of cases in the white case most recently in the snyder case which the supreme court recently denied the opinion after declaring that the standard is unfettered discretion the court at page two hundred and fifty four of swift says even if the quickness of the proper standard the government usually satisfied and that's the place where essentially says look even if we were to apply sequoia we would think the government has met that standard you know it's an alternative holding yes your honor i believe that's the case and i believe you know subsequent d c circuit decision to make it quite clear that the d c circuit doesn't engage in any sort of review under the  in the standards when sequoia orange is properly applied and we don't think the two standards are outcome determinative here both are deferential and the government certainly identified rational release reasons related to legitimate government interest for seeking to dismiss the claim to the district court that he wanted to put on certain evidence that was refused or the judge didn't allow that i don't believe so you're on i've i've you know i've read that hearing transcript a number of times i think the close as they came was saying mr m is here and he's available that's not a request for an evidence here here but i think the court thing to remember is that the hearing was sort of a two part thing similar to this argument it was both you know an argument about whether the government's actions were rational and it was also an what legal standard applies here and so i think it's important if you're going to say i was deprived of the right to put on this committee you know that you're never asked to put him on you just said it could i don't understand how that c be an error guards have equal i think i quite agree your honor and you know mr starr seem to be implying that we will have some sort of argument i don't we don't waive anything because we were there was nothing to respond to that we didn't argue to us that there was a hearing that there that i don't know that you said there was a hearing and you argued to us that there doesn't need to be any sort of robust here and i don't think you argued to us that there was indeed a hearing we've argued both points your honor i mean we were were our primary position is that the court should adopt swift and that that gives broad authority that doesn't have any substantive limits on the on the government to just dismiss it doesn't supply a standard review and so the importance to be a really difficult thing to say that you don't really have the right to robust hearing when congress has specifically said that you get a hearing and the hearing can't just be for you to have the chance to express it claim to the one side to be up to the government and it can't just be because you want to press conference because none of those are a proper article three function well should construe terms to be surplus that's basically a something that weaves you off a certain construction that would otherwise be reasonable and that you need a hearing you need a hearing and whether or not that's evidence or you're not should be determined by the any consequence that's why you keep returning to the released you're trying to get an opinion out of the court that has a really strict with standard and we're just trying to decide the case and that's why we're having kind of we're not we're having some difficulty so i'm asking do you need us to say that you don't get a evidence or a hearing or that the make any determination about what the purpose of this hearing is in this case it's look we  arguably was some sort of hearing what you know help help if again i want to be clear this court could take the same approach as the rd circuit recently did in shanghai and not decide between the two swift standard is the more applicable standard and in particular i would like to point to the court it's on bond decision in writing in which the court emphasized the the mechanisms of control that the government exercises over ki chan how actions and found out to be a language against that position and we've got you sort of said well in certain cases that may not be the case i want to know if you stand by that i think again when you talk about something like invidious discrimination  the swift standard the d c circuit left open to the government conceded in that case the possibility that if you were engaged in something if there was evidence that you forgave them something like fraud on the court which this court has defined to mean something like bribing a judge or jury and it's a very discrete ca concept or some sort of really credible claim of invidious discrimination yes you could have a hearing swift allows for that and i think this court recognized that up and hearing if the evidence is undisputably that it would cost one dollar to proceed with the case and it would be cover one billion dollars hypothetically and yet the government wants to dismiss this with stand for the proposition that the government has unfettered discretion and dismiss  i believe it largely does your honor and again that image in a hypothetical that you you sort of toss out there it's difficult to imagine that but i know i can't fight hypotheticals but the government has lots and lots of other things it sits in a unique position that the supreme court has record recognized in heckler hearses cheney in affirming basically unreviewable enforcement discretion in this area that so this is not just inside them so i think you think that you still could thank you for answering that well but then what do you do with the statutory language why did congress set a hearing if your position is that you don't really get a hearing unless it's invidious or fraud why did congress how how can we read out that which is what i think you just said we should well i think that it gives meaning to the term hearing to allow for that safety of all the work to adjudicate a claim of fraud on the court that's language actually we've been talking a lot about the right to if you're in the statutory language is actually much more qualifier it says the government may dismiss notwithstanding the objection to the relator provided the person or provided the court has provided the person with an opportunity for a theory that suggests that upon a particular showing and a particular request you might be able to get a hearing but i want to return to the idea that the backdrop here is prosecutorial non enforcement discretion   versus cheney and other cases including in this court recognized that this is a quintessential executive branch type of decision about whether to go forward with a prosecution and of course now action in the united states names to to remedy injuries united states it is our claim we are the repeat player in the system we are the ones who are going to be litigating into kickback statute claims in other cases there are d lots of considerations that are not easy to mon to explain in a hearing that go into the government's determination whether to dismiss a particular case and counsel amazing i could ask you a couple of questions so the you maintain that  was they just consent to it why aren't you obligated to offer some reason for it even under swindon well as a practical matter we do offer reasons in all of these cases including as i but the governor gives reasons even in those cases they don't give reasons you know with the same you know extensiveness as we do in cases of undersea queer are and where we have to satisfy rational relations best and here knowing that th you know we don't have to decide between these two stats but there is a split and what i'm suggesting is that this court decisions point inferior to possibly service groups like rational basis s do you have any obligation to support a motion to dismiss with with justifications other than it's our decision this is not a good idea i would change your mind given the history of the case this is not something that when the case st came in and you you a metal you request is already right so the government has moved to dismiss other cases filed by this corporate relator and it is appropriate for the government to consider the source of the information the related but i want to go to your point your honor about the timing i'm suggesting that the question i have put to you is what is your obligation if in it i hear you saying you don't have any obligation there are others out i want to be clear that that is that would be the swift standard that we do we don't have an obligation but as a matter of practice we do even under swift if we have to be swift and have and stand and the point that i would like to make is that every relator thinks that they have a great  the government is uniquely positioned to decide whether the claim is going to be problematic the government is not confined to the four corners of the complaint in the same way that a district court is in ruling on a motion to dismiss the government  even under sequoia orange the sequoyah are the th circuit has validated the approach that says you can dismiss even meritorious claims they were very clear in that irritates they assumed the claims had merit nevertheless dismissal was appropriate under the standard we're hearing has content and that is in the center the that's correct your honor and we think that the word you raise your meaning then well that we think that the word hearing is given context or given context in a variety of ways one way is as the d c circuit said it gives the relator a formal opportunity to try to persuade the government not to dismiss the case it also gives the government an opportunity to put the basis for dismissal on the public record that's a valuable thing rather than just the case being shoveled away in the dark of the night there's a public place where the government has articulated why it's going to dismiss and as we've discussed it also gives the relator an opportunity to raise plausible allegations of fraud on the court or some sort of other unlawful motive they didn't do that here in the district or expressly found those sorts of things were not present in this case is that a public hearing in this tense yes your honor as a public check to do anyway i'm sorry characterization of the hearing requirement as meaning essential in many trial on the merits the government shouldn't have to litigate the merits of the false claims up case against a related the government is normally on the same side of the as a relator we litigat him actions that have gone to the court of appeals filing chemical sprays that encourage discordant others not to rule broadly in ways that could hurt the government's in foresman interest so we're the ones who are the repeat player who have the wong view of whether these claims should go forward or not valid vaccine for coated and he therefore didn't want to sue them because you want the code vaccines and nothing to do with the actual merits of the case but the fear of making them step back in the code vaccine would that be  under the any kickback statute and it takes the form of support services and other patient information services provided to pay ships and that is the sort of thing that the government actually wants to encourage any kickbacks stature does  forms of remuneration that's designed to induce fraudulent claims to medicare and other government pay yours however we have a very strong policy interest in ensuring that people get the information they need to use the drugs that the government is paying millions of millions of dollars for replay the questions have you has the government proceeded with in h c a in any case or has it dismissed every case that they've tried to bring it people bringing in the data crunching to do this work no your honor and again the fact that we've allowed some cases this is spelled out in a hurry the fact that we have allowed some cases to proceed you know it's just belies any claims out of us against the corporate leader however it is perfectly appropriate for the government to consider the source that posed things out as all kinds of provisions that can you know suggest that the government should consider whether the valuable information is being brought forward by the military is that if they answer is no you haven't dismissed all of their cases but ways regarding the memorandum in a d o j policy is that correct that was violated in reaching this decision no it's not correct and it's not something that's in the record or the cranston memo that he's referring to is something that is labeled privilege and confidential but is widely disseminated among defense counsel women and religious and all that does is essentially codified the types of things that the govern it normally considers in you know moving to dismiss and  objective in the grass the metal like any internal government guidance is to provide uniform new treatment to basically ensure that people are considering the same things you know around the country when they're thinking about moving to dismiss it's just a list of non binding factors there's no other they say you also by lady d o j policies in addition to the main there's two areas in which they say you violated if you haven't come in on that no way there is no violation of d o j policies the again we've gone through and explained what we consider we've offered a conservation of resources rationale and a public interest rationale here those are you know eminently sufficient under the square i'm standard we think the court again should adopt the swiss standard but we think the corporate usually affirmed under the rational relation standards here ok well we haven't really and i'm have to give you each one more minute or something can you quickly tell us why this is an arbitrary and capricious you can each have one more minute because the same kind of problem we have with the auctions thirty eight dollars defendants and just you know claims over a six year period and you know tens of millions of medicare claims was going to employ of the government in litigation that it did not think had merit and that it was not policy rationale that basically alluded to before that the provision of these sorts of support services you know is in this particular case based on the government's investigation of these claims not illegal roun aeration under the it's a complicated area but the government makes policy choices about whether to proceed with cases where strong cases and when to pull the plug in cases that's a quintessential exercise of executive branch discretionary analysis made of benefits you think the claims have no merit and they're going to not end succeed you know and you also think that you're expending too much time already investigating the case you should be forced to you know engage in a some sort of economic analysis that really opportunity to develop my case here we gave them an opportunity develop their case they filed their claim in june of two thousand and seventeen we let the district who are a rule on a motion to dismiss and they were allowed to complaint at that point it became clear that you know the scope of the claims the government had been monitoring it became clear that the case wasn't going away at least initially on a motion to dismiss and the government acted and that's responsible government behavior it was clear there was going to be another substantial round of litigation on a case the government to determine lacked mehr if the government doesn't feel like that is a pep rally and says i have one more question for you there is there's one long to any kind of roughly parallel situation which we have the government has absolute how situationally controlled discretion to indict or not indict but once an indictment is filed the united states district court then you're going to refer him to a criminal role forty eight dollars and the court in riotously i'm actually addresses this and it's true you're right that the government does have wide latitude under rule forty eight to dismiss even indictment that has dismiss with the rule forty eight discretion actually said that you know that the authority is not constrained in the key town context by the rule forty eight requirement to get leave of court the court says  is a strong analogy there i think the government has great discretion in that context as well however again i think the court has recognized the government has even broader potential authority to dismiss in this concept i see that my time is up i'm happy to address any further questions for as long as the court like know you're on to this guy i mean the dismissal decision was was long before kobe but i think it was a that's my last question well i think it's a good illustrative example of the type of policy concern the government might be able to consider here that wouldn't be the leap out on the face of the papers that has nothing to do with money thank you thank you  if i may describe this was a quote from that one example there sudden hate relationship for john menino in n h ca he's prepared to answer the questions that the court might have and the court has the benefit of his meaningful period and that under the law means an evidentiary there's fifty years of law with respect to what hearing is so we understood that the magistra judge understood fully that we were seeking certainly before or she determined that our case failed that would we would be heard i have to take issue with all respect for the government point to it says the grandstand memo and the just for men most were not violated they were he says the plans to member is a confidential document that's in the hands of defense lawyers i think that borders on misleading the court the grandstand memo has been the subject of congressional hearings and sharp criticism by the channel of the senate finance committee trolls grassley and i could end up a political squabble but it comes with ill grace that needs to fix any problem with this i mean where this judge is that's all we are congress can certainly pass a different stance even say you cannot the u s cannot move to dismiss absent x y z or if you so if they're dissatisfied with how the government and how the executive branch is progressing in this regard this certainly has the ability to redress that statutorily way is just as they can step in and say we don't like the way this is them and we're not asking you to urged to follow swift which is why the fetter discretion which is gaining some popularity but for the most part the district courts are in fact practicing law consistent with goldberg the kelly hoppen of the rumsfeld which is an evident government ok but i didn't see too where he said i will i not offering a bit a you know a bill of exception here because you didn't let me put also also on the stand that didn't happen i'm also employee aware of a law that says the word here in requires evidence because i have had thousands of hearings in my life that did not involve evidence since i was a child as were others here so there are plenty of hearings that don't involve meanings what is happening here your honor is is that deprivation of a property interest you're taking away a property interest identified by justice scalia that triggers the  constitutional protections and the government doesn't respond to that we have a constitutionally protected right to it while a meaningful full hearing and that of course depends upon the circumstances and the experience of the district court now the government's spent a fair amount of time in its argument talking about this case does not have merit even if it did have merit we could dismiss we don't disagree with the la besieging this court to give us our day in court d to show that the government's analysis of the merits is mistaken and you have these powerful indications that the government is simply wrong the magistrate judges report and recommendations twelve b six we passed the possibilities to it's not the final adjudication but it also has and this is outside the record but it is a matter of public record the texas attorney general's office other states are considering this has in fact come alongside and there is a state court so not binding on anyone it's an indication seeking medicaid recovery for what these very claims and i want to guide the court back to our reply brief where we say that the policy concerns we didn't hear them in the specificity today but the specific policy concerns that have been d articulated by the government are not our allegation is we are not challenging information to patien that's the their entire thrust and we've been explaining it to them for months you're not understanding our case the meditate judged it because these very arguments that you heard very ably made today were