the court benjamin's holds on behalf of the united states the united states has participated as amec is in this case because the district court committed a fundamental error in purporting to require that the false claims act requires objective falsity the district court created in a text to a standard that not only has no basis in the statute but is difficult to apply and threatens a large number of cases where the united states itself would like to bring false claims act claims indeed just to give some examples of the kinds of claims that the district court would preclude if a doctor himself did not believe his own stated opinion that something was necessary or for dr phil to make any inquiry about a patient whatsoever before certifying that a particular treatment was medically necessary under the district court's objective standard approach it would seem that such claims are precluded now so i want to make sure i understand the united states his position here is that  this particular case the district court should be reversed even without reaching the objective falsity issue your honor as a backup argument we are saying that even if the court thought that the false claims act required objective falsity there are circumstances where you can objectively prove that certain claims were not medically necessary certain treatments were not medically necessary one could be providing an opinion that someone had a cardiac problem when in fact they had  a sprained ankle certainly and then we think there are plenty of other examples and at the end of the day if if the court does object adopt the objective standard then you know i think we could talk about it if the court wants to various ways to meet that standard but i want to really urge the court not to adopt that objective standard and one reason why the course and adopt it is that this court itself already rejected that approach in the hooper case and indeed there is no textual basis for it the supreme court self in its relatively recent escobar opinion explained that when courts interpret the meaning of the term falsity for purposes of the false claims act the court shouldn't use policy based reasons to create a textual  fraud is and the court can apply that statutory test as congress has set it out but the problem so the united states initially declined to participate in this in this kind of the united states did decline to intervene but of course that doesn't mean that the united states is commenting on the merits of a claim when the united states declines to intervene there can be all sorts of reasons for that it could have to do with issues of collectability of a judgment it could have to do with the fact that our investigation  is simply not going to be completed by the time that the district court is asking us to make a determination it could be that we determine that the cost of litigating the case to us would exceed the likely benefits it could be any other sorts of reasons co resources that you know maybe we think this case is a good one but there are other better cases out there that that bring in more money that we want to devote our resources to so yes we didn't intervene in this case but that doesn't mean that we are commenting one way or another on the viability of a claim and of course the united states always even want to declines to intervene in a case can either permission to intervene later if it wants to or also if it thinks that the claim is one that it would be against the united states interests  the united states can ask the district court to dismiss the case over there later is objections and all that happened here was that the united states declined to intervene and it allowed the relator to pursue the case and we're here now as emmett guess because the district court committed a very significant legal error and we want to make sure that the court does not also commit that legal error in a way that creates problems for false claims that cases throughout the circuit i'd be happy to address any of the particular issues in the defendant's briefs and if the certified that various treatments or various procedures were medically necessary then the relator has also met the materiality standard because by statute medicare cannot pay claims unless they are medically necessary and so if someone is falsely telling medicare that something is medically necessary that is absolutely something that is material to medicare now the district court i think got a bit confused when it started talking about the into qual criteria the interpol court here is as far as we understand it you know maybe they have some evidentiary basis maybe they help the plate at the relator get above the possibility bar by the end of the day if the district court or any court wants to rule on materiality the question is whether or not the particular fraud alleged was material to the government  the fraud that we understand to be alleged is that doctors falsely certify that something was medically necessary and if you falsely tell the medicare that something is medically necessary that is absolutely material to medicare so cassy you sa your honor is looking i think there was a later appeal in that case in the later appeal might have been unpublished but we're citing the two thousand and twelve opinion which is a publish a pain on forty seven dollars and what's going on is that the relator in that case was alleging that there were false estimates and the relator position was that because an estimate is a kind of opinion it's inherently subjective and therefore can never be false and this court said that's absolutely wrong it good morning my name is mike corey and i represent jane winner and i'm here obviously to urge the court to overturn the district court's dismissal of the complaint i'd like to start out by answering judge bennett's question and that there is falsity and there is truth i don't believe this is necessary for the court to tackle the questions set forth and sarah care or st mark the only thing that's necessary for the court to decide is does the complaint allege allegations that are plausible and does the complaint allege fraud with particularities in compliance with the provisions of the federal rules of civil procedure this complaint at paragraphs twenty nine through forty five in our opinion obviously alleges a fraud with particular y there are statistics that are alleged the allegations are by my client who not only is a nurse but holds the position of director of case management at the hospital where the fraud occurred and those case managers are specifically responsible for evaluating the quality of the admissions of the doctors through the emergency room the allegations are plausible you seem to suggest that doctors have some sort of immunity of being accused of fraud what the appellee is are asking this court to is rule that a doctor's representation of medical necessity we're not talking about opinion we're talking about a representation a certification to the united states government that the admissions are medically necessary that somehow as a matter of law that cannot be fraud we know that's untrue i have the pleasure for once being on the same side of the courtroom as the government it doesn't happen very often in my thirty eight years i think this is the nd time a lot of indictments ok well i want to ask your question on related to record that would indicate that you had served dr socket pano and doctor with the complaint were they ever served i don't believe that some of the doctors were served your are not not every doctor who is named issues i don't believe so your honor i think what i would call from the district court's opinion is that it was based upon this issue of objective falsity and disagreement between doctors which which leads me to a point of what opinion have we heard that the certifications we allege were in good faith issued as an opinion none all we have in this case is a complaint and nothing else and the complaint clearly alleges with particularities that these doctors are not doctors they are thieves that they have stolen money from the medicare trust fund recurrent leigh and it's supported with statistics with a terminations of my client after she complained it's supported by allegations that health care system honesty is never a burden thank you thank you very me please accord matthew i'm home from the half of rowan's nelson mr corey just said he just gave it away and what he did was he said that the claim of falsity here is based on his client's opinion the differed from the doctors he just said it and that regardless of whether he said or not we need to look at the compliance of course the complaints your clients that there were certifications by physicians of medical necessity and the district court among other things rule that those certifications can never as a matter of law be material i don't understand how that can be well your honor i think the district court's actual pinion was far more narrow he said that in this case you said that in a case where the medical necessity certification is based on on what purports to be a clinical judgment that you can never have a false claims act and this court doesn't need to go there what  went on to say was and i think he did so in complete alignment with this court's holdings that you have to claim in a fraud case why it's false and so what the district court said was where all you have is a differing opinion that's not enough to prove a judgment call false and it is a judgment call that's in the the actual governing statutory the governing regulations they say it's based the decision to admit is based on a doctor's not a nurses a doctor clinical judgment clinical expectation as to whether this person is sick enough to still be in to stay in the hospital for two days what is it if their medical records definitively show otherwise for instance with the example been what if a doctor it made someone because of heart problems and the medical records definitively show all they had was a broken or sprang to ankle why wouldn't that be enough to show falsity well your honor i think that where there is directly conflicting evidence facts they conflict directly with whatever the doctor's opinion or certification is you'd have false but here that's not w no falsity what we are saying is that when you are dealing with complex factors and a judge and a judgment call by a physician you got to do more than monday morning quarterback and you've got to do more than just say i'm a nurse i reviewed some medical records and in my opinion those medical records and we're judging that you've got to do more in the complaint then lay out the specifics have a lot of detail say people were admitted improperly have facts in the complaint that and so we turn to why what is was it in this complaint the specifics in this complaint that say why it's false and the answer was i'm sorry i apologize your i don't know yet the answer is the answer the answer here is if you asked mr corey bit differently i read the complaint this saying based on the pattern of what was going on the pressure the way the money was flowing trying to increase profits for entities individuals who had no business being admitted to a hospital because nothing justified the admission based on what was actually in the records were admitted now maybe they can't but this wasn't summary judgment when you're actually what and it's i think it's very important to look at the allegations in the complaint specifically and particularly where they can see that most of these patients many if not most of these patients could have been admitted to the hospital look at the parent that accords in the specific allegations of the patients mr corey admits in his complaint that these people could have come into the hospital but only for observation so now you have very fine degrees of judgement being questioned and it's not black and white here it's a very great physician is taking patients who have come from it come from nursing homes they're already sick they're coming in they are diet seen by a doctor and diagnose this is not a case where nobody saw the darkness doctors didn't see the patients the doctors diagnosed and they were admitted and there's an initial that they may have been sick enough and this is where judge walter got it right a lot of cases here it's just yes they were sick but they weren't necessarily sick enough to cross over that threshold between the mid to the  by your order and it would baby have a footnote that says we don't need to address objective falsity it would say that upon review of this complaint this complaint alleges falsity but it does so and would but when it when asked whether why it's false the answer is because a nurse disagreed with the doctors on the ground call a nurse who never saw the patient disagree with a doctor who saw a patient where a statute and where regulation puts the discretion in the hands of that doctor and you want basically you're taking the tack that the district court in essence you're saying that a nurse can never nd guess a doctor and i what i what i am saying is that you have to have more than just a different opinion where there's a judgment call that's being made and that's the not insulated from scrutiny as being false that's correct your honor but then you have to ask why is there a fact in the record that says that this opinion is false although here all you have is a nurse i mean the district court specifically said these allegations are based on subjective medical opinions that cannot be proven to be objective we false not on summary judgment because they didn't have enough evidence but because subjective medical opinions can never be full and i'm not asking this court to adopt that what i'm asking the court to do is read the rest of the opinion and adopt the rest of the opinion which is where a physician is making a determination  the the gray area of whether somebody's sick enough to stay two nights in a hospital that is a clinical judgment it's an on the ground judgment that that in after the monday morning quarterback by somebody who's reviewing the medical record and says in their opinion some of these people had these things but it just wasn't serious enough in order to justify and mission that's not falsity and want us to say that the nurse can never know of course i'm not what i'm trying to say is that you think my nurse well like that makes  already very sick to be able to make those decisions without looking over their shoulder at the government or at a nurse as to whether ok i want to admit this person but i'm worried that i'm an end up in a false claims that case over as i could mean you know i mean your argument may have some good policy reasons behind it but it strikes me is that that's an argument that needs to be directed to the congress because i don't think the congress adopted the statute that you're urging on us the cut the congress that we're quired falsity and we're asking for  falsity and we're asking for a statement of why it's false and where there's no record here of a black and white falsity and just in there just a and a person's after the fact a termination a differing opinion and that's what a sarah care said that's what the th circuit said represent mr weiner who is an employed lawyer for sycamore imagine an entity that was not named here and then in turn i also represent s and w health which was a partial owner of sycamore and i should i should note in the reply brief clients who are not doctors obviously mr weiner is a forty nine year member of the california bar in good standing he's actually here today and the reason i note that is letting this case proceed as to him given the pleading flaws is well it defies will nine be it defies the reason we have pleading rules and the specific flawed like to note is there's been no timing of mr weiner or s m w health for that matter to any submission of a false claim or causing a false claim to be submitted to the government for payment and that's crucial in again corinthian colleges six hundred and fifty five f rd at nine you leave aside all the policy debates both directions to i would humbly ask of the court be very precise about there could obviously be an affirmative to some parties and not others specifically with regard to mr weiner n s w health there's been no pleading tying them to a false claim which is the essence of a false claim act case and it makes sense mr weiner was an employee lawyer the measurement at the t he did not submit he wasn't treating anybody he wasn't submitting claims that he wasn't certifying us to patients he wasn't submitting claims there were very vague sort of group pleading allegations that try to lump in mr weiner s w health and a couple of the rowans nelson entity allegations if that's the deficiency well your honor we had multiple mean confers there's been three i hate to say three strikes you're out but they've had three pops of three tries at they've known who the parties were in terms of and was there was a previous briefing but then it was amended but there's been there was no attempt to tweak the issue with tying it again you have to specifically tie a false claims act if and before you can put them through discovery and all the  afterwards to a false statement or causing a false claim to be submitted it makes sense as if you health is an owner of sycamore it's not an entity that manages or does does billing or does anything mr winer's employed lawyer for sycamore again there's no there's been no tying him back there are a number of allegations and well as to whether amendment would actually help giving giving them and giving the relator another shot their specific recitations of an e mail a meeting a phone call none of which copied mr weiner health they didn't attend the phone call that's alleged they didn't attend the meeting that was alleged so actually don't think that the relator is not going to manufacture new facts she sort of put every detail in there that she could and it just does not tie any false claims to my client so i would urge the court to consider that as you are also going to talk about materiality yes your honor and i should say i some of my time was ceded to me by pascoe and his counsel asked that we make the point that dr pascal also was not mentioned and has not been tied to any submission of false claims so but as to materiality there there's an important distinction that may have gotten lost the pleading the relator has made of differences of opinion her and it's not that she's a nurse is that she's not a license physician and sort of certification has to be by a license for the shin as counsel noted but her making payment of she's there were certifications of medical necessity when there wasn't medical necessity what her deter her opinion of what was medically necessary is based on the enter call standard so i don't think it's based certification can never in this kind of a circumstance be material because opinions can't be proven to be false well i i would probably join my colleagues opinion that this court doesn't have to have to go there resolve  generally don't wade into it understood your honor i will say that the if you look through paragraph by paragraph i'm i look at paragraph seventy right now the complaint nd and complaint it says did not meet inpatient criteria for admission to the hospital that's defined  there it's getting into immaterial differences for exam full paragraph seventy there was urinary tract infection the relator says there was only two bacteria present when i looked at the documentation and the medicare is billed for a kidney in your unary tract infection treatment there's no false statement in a d r g submission such as that and there is something in the documentation that shows that infection but that's the level of detail again relying on and when he or she certifies an admission to a hospital is medically necessary it's true that the only doctors can make that certification the nurse is claiming the doctors lied that's plausible it's assumed to be true because there's nothing we're not a summary judgment we're not before the try or fact it's assumed to be true it's plausible doctors lie and it's always with particularity the other thing is  it's true that these patients came into the e r sick that's what makes the fraud so insidious and they come in sick and when they're admitted they're in mynydd under a certain d r g code which is alleged in the complaint which medicare when the bill goes in medicare pays so how materiality can be a question is beyond me absolutely to reality wasn't thought about the court what i want to ask you about is what your position regarding allegations in the complaint to tie dr pascal to looking at patients in the e r room and admitting them of fraudulent the corporate defendants are the ones that own the hospital and we allege that they control the hospital and