Legal Case Summary

The Honourable, the Judges of the United States Court of Appeals for the Fourth Circuit. All right, thank you very much. Please be seated. The next case is USA versus Triple Canopy. Ready to hear, Mr. Scarborough. May I please the Court Good Morning, Honour. Charles Scarborough, Department of Justice for the United States. I'd like to try to preserve three minutes for a bottle of possible. You can try. In this false claims I case, the United States alleges that defendant Triple Canopy fraudulently billed the Army for guards to protect a military base in a dangerous area in Iraq while knowing that the Ugandan Nationals, that it was supplying to perform this critical function, had not passed a basic marksmanship test. Was this the breach of an expressed provision of the contract? Yes, Your Honor. What provision was that? It was it's embodied in a task order. That's at J-99. It's at the very bottom of the page. Is there any dispute that this is an expression of the contract? No, Your Honor. I don't believe there is. And that requirement was what? Just generally. Well, it's that they passed a marksmanship test. Basically, I mean, these people are going to basically replace Marines. They need to be able to say it's just that they have to pass the marksmanship. It's qualified. An objective test. They have to hit 23 out of 40 at a target at a specific range with the guns they were going to get. Every breach of contract. Absolutely not, Your Honor. What makes the difference? The difference here is the knowledge and the falsity that underlies it. Because not only here, the TCI sort of bill for something that the government that didn't meet the specifications that the government had bargained for, they also engaged in an extensive campaign to falsify that by falsifying the marksmanship scorecards, which shows not only that they knew, but also that they knew that this was something that the government cared about. In other words, that it was a condition of payment, that it was relevant to use other terminology from the false claims act world, that it was material. No, Your Honor. Otherwise, they wouldn't have been paid. And the complaint makes that very clear at many places. It says specifically, all over the complaint, basically, that if we knew that these guys had not passed the marksmanship test that we contracted for, that we would not in fact have paid for these people. That makes perfect sense. Are the files available to the government? Yes, Your Honor. The files were available, but they were falsified. And there were actually- Were they ever reviewed by the person to whom they were made available? They were extensive allegations that that was what was required under the contract? Well, but here's the point, Your Honor. No, no, no, no. The point is you have to answer my question. Was there ever a review of these falsified documents in the records by the government person tasks to do such a review? Did they have a look at the records? The reason why I'm answering the way I am, Your Honor, is not to evade the question, but it's because we're at the pleading stage. And so what matters is what is alleged in the complaint? The alleged one. And what is alleged in the complaint? And again, what we have to show is that the falsified records were capable of influencing the government's payment decision. Not that they- The government actually relied on. That's perfectly clear from the statute and from this court's decisions in Harrison. So here's some things that are alleged in the complaint, which goes to your question. There's no allegation that- There's no allegation either way that the person could have or couldn't have

. The point you argument is that's not necessary. You just have to say it affected the payment decision. That's correct, Your Honor. And let me sort of give you some of the things that are in the complaint that show that it was clearly capable of influencing. Okay. And it affected the payment decision because the contractor didn't tell the government about it. Well, and we're even worse than that. The contractor falsified, basically, lied about the fact that these guys had passed the Marchment Test when they hadn't. And repeatedly did this on a monthly basis. This is an ongoing thing. Whoever the allegation of the government saw that information will not be allowed. That's what I'm trying to get to is that the allegations here are that, first of all, that the contract says that the scorecards had to be in the file. This is all going to whether it's capable of influencing the government's payment decision. That the officials were required to review the file. Is falsification of the documents, is that essential to your argument? No, it's not your argument. It's helpful to your argument. It's absolutely helpful to your argument. Not essential. No, no, your honor. And I mean, to the extent that you want me to respond to that right now, the issue is there. Well, but let me expound upon that because the core part of your argument is that we did not get what we bargained for. What we bargained for was guards who could shoot straight. In the same way with that, when the government asks for gasoline with an octane, I'm using an example from the SAIC decision in the DC Circuit, you ask for gasoline with an octane rating of 89 and someone supplies an octane rating of only 87. If you know about that and you submit it to the government, it doesn't matter what you say on the face of the claim at all. You are submitting something that you know that the government has not bargained for. And that's the very essence. Is there been a certification in this case? A statement on which the government can rely, you know, back to four of the requirements. Is there been a statement? Well, there have been statements. They were the statements in the score cards. There are also statements on the claims themselves that we are giving you guards which in this context, we believe constitute express false statements on the face of the invoice. Now, the district court, well, they are guards, aren't they? Well, they're guards. They're guards. They can't shoot. And that's, I think that's the fundamental problem here, Your Honor. In this context, we made very clear in the contract that we need guards who can shoot. You can't just say, it's sort of like your scrap case. You're giving you people that essentially can't do the essential function that we want them to do. But our point is that while we have that express false statement and you may agree or not as to whether that's sufficiently expressed. I just looked at from the Western House, the Venerable case, back to number four, basically. The statement or conduct calls the government to pay out a claim. How do you qualify there? Well, again, we clearly have that in the sense that when the invoices are submitted, they're saying, hey out. The invoice. The invoice is one part of it. And again, we also think that the statement. And again, you brought up

. What else is there other than the invoice? Well, there's the falsified score cards. And again, you brought up Harrison, which I think is... That didn't, that didn't. That falsified card didn't cause you to be paid, did it? Well, yes, absolutely it did. It was necessary to basically put those cards into the file. That was a requirement of the contract as well. Those were some of the things I wanted to ask. They had asked for payment over that. Would you have a false claim? No, there has to be some nexus to payment. That's what material is all materiality is all about. So is the invoice that you look to a statement, isn't it? No, you're on. Well, that can be. That is one thing that... I want to get this straight. So by falsifying their records and putting that in the file, that's all that happened. And you never got any requests for pay after that. That would be a false claim, that. No, you're on. And I want to be... It says a statement or a conduct that caused the government to pay out a claim. So how is it anything other than the invoice? Okay, can I try to respond to that? The provision that we're talking about for the falsers provisions here. A1, A and A1B. For the false statements, the falsified scorecards. What we are relying on is A1B claim. And I want to read the language because the language is actually very important. It's knowingly makes uses or causes to be made or used a false record or statement material to a falser fraudulent claim. Our point is that the scorecard, which the contract required you to put in there, which everyone knew contracting officers, auditors, and other people were going to look at to decide... Isn't that a false statement? Doesn't underlie that? But how does that underlie the false claim? Because in order to get your claims paid that you submit later, you have to have those statements in there under the term. Does it have to be known to the government? Yes, you're... Well, again, you know, you're on it? Yes, isn't it? It's false claim because it has the cause of the government to pay. Isn't that... The next is.

.. Not a fight you, but then it says it has the cause of the government to pay. The next is materiality. And as this court said in the Harrison case, again, there was a materiality issue there. And it was the false statements that the beginning were about a conflict of interest. Yes, you hear it's not materiality, I don't think. Well, it's truly material. Well, I agree with the honor on that. But I'm talking about... But you have an answer to that. I'm going to leave you alone. But I ask you about the statement of conduct calls the government to pay out a claim. Pay out a claim is the operative word and a phrase, isn't it? Well, you're on a makeshift call. I think you're... I think you're focused on A1A, the language there. And that's why I read you the language from A1B. Under A1A, we don't have to show a false statement of any kind. It's sufficient that the government doesn't get what it's bargained for. So that's why I'm saying that this is not a necessary part of our claim, that the fact that there were falsified scorecards, if they had just basically not given us guards and they had not said anything on the space of the payments, we would still win the case. But we have more is the point here. And the point is also that materiality is defined in the statute and it means having a natural tendency to influence. There can really be no argument here that these falsified scorecards weren't capable of influencing the government's payments decision. Did you have a falsified scorecard with this just be a breach of contract? No, you're on. That's what I'm trying to say is that it would be an A1A case only. We would not have an A1B claim because we would not have any false statements. And again, I'm assuming that you're going against us on the notion that the claim about the guard, same billing for guards is not an express false statement. We think that is expressly false as well. There's sort of three independent ways in which we think we win this case. You're on the allegations that they did not function. The contractual of those guards, they did not rebuild this marksmanship requirement. Yes, I would object to the characterization as only. Yes, they didn't do the main thing that guards are supposed to be able to do, which is the shoot straight. There's no allegations in here that a bunch of calibends showed up one day in the shot at him and they missed. None of that matters, Your Honor. Again, it goes back to the very essence of what the false claims act was enacted in the Civil War to prohibit. You didn't claim that the guards didn't show up for work. No, we're not, Your Honor. But you're claiming he's asked only in your claim here based on they weren't guards because they couldn't do the express contract provision requiring the marksmanship qualification. Yes, not anything more than that. Well, the more to that is there is knowledge in that they, they, I don't know more to your claim. What do you claim is over, isn't it? That they weren't qualified

. That's where I've brought you of their inability to shoot properly. That's the only part of it, isn't it? That's correct. But again, I guess I'm sort of objecting to the only part because that's like the very essence of what we asked for here. And again, what the purpose of the false claims act was. I asked you if that's the only proof that you have. Okay. We asked you that's all that you claim. Right. I don't mean to be fighting unnecessarily with the court. I'm not, I'm not, I'm not trying to. So my point was to try to go back to the purpose of the false claims act. You were talking about the purpose of the circle earlier. Is it the certification required? No, Your Honor. A certification is absolutely not required. And this court's decision in Harrison makes that clear. And that's sort of the fundamental first step error that his court said you need to have an objectively false statement on the face of the claim. That is just patently not true under the Harrison decision where the, I mean, it rejected a district court decision that said that very thing. But if you do a certification is required, you have the law wrong. This isn't if. Is there any certification in this case? Well, we think that cert, I don't know whether you're using certification as a term of art. We think that there is an expressly false statement in the invoices themselves. That is the guard. We're giving you guards. I know. And we think that in this context, you weren't giving us guards. Not least guards that did what we think. If there any certification in the invoice requesting payment. That is that is in the invoice requesting payment. Again, that's it. And the invoice says the guards can do what? No, no, no, they don't say expressly that they say we're giving you guards. And we think they say that in the invoice. They do. But a point is that that's not necessary. Often you just say, pay me now. And that if you know that what you're asking for payment for, if you know, that's an important part. That it doesn't meet the- Do you want to take time off of your report? I would probably prefer to go to the end. Okay, thank you very much. Thank you. You reserved some time. May I feel? Morning, Your Honor May, please the court. Train Mayfield for the- Relator Omar Bader. The government and its brief of address, I think it linked the requirements of B-1 and B-2. Excuse me, A-1 and A-2. The law that we've talked about, the district court, as I recall, seems to at least last on to the fact that we've come- Where did the definition for the fact that they had to be qualified in a certain way come from? In the task order, 11, Your Honor, it specifically says they have to get 23 out of 40. A person who can't do that is not a guard, simply a person

. And that comes on one of the documents. That document a part of the record? It's referenced explicitly in both the government's complaint and the Relators complaint Your Honor. Is the document a part of the record? It is at this point because it was submitted by TCI and Rebuttal. But under normal pleading- Not before the district court. Oh, it certainly was. It was before the district court. And as you know, under the pleading rules, any document is expressly referenced in the complaint is considered part of it for dismissal purposes. So if you go to your point, Your Honor, these were not guards. These were just simply people. There was not a- in fact, we allege in the government alleges that not a single guard ever showed up at outside. Not one. They just simply brought in you condoms. The contract was not for you, condoms. It was not for people who could pick up a rifle. It was not for people who should up for work every day. It was for people who could get 23 out of 40 just as any- You had to get 23 out of 40 if you had no wouldn't it? For anyone with the other public. Would that be sufficient? Yes. And that did not happen here, Your Honor. Not once. There's nothing to do with you, condoms or anybody else. It's just that what? I don't want to get hung up in the definition of guard. But the truth is, that's what I asked the first question- The first question was there is an expressed condition about marksmanship. I was told yes. You say yes. Yes. And that wasn't met. Correct. Does it matter if you call somebody a guard or not? Well, it does matter because if you're asking for payment for guards as opposed to mowing the lawn and you don't get paid. Or rather you do pay for a guard and you didn't get a guard then you've been lied to. And they were asking for payment for mowing the grass in this case. No. They're apparently alleging that they were getting payment for wheeled- Langing that they asked to be paid for guards when they provided them. They're not. They have anything to do other than those people standing there performing the duty of security service to this contract. They did do with anything else. No. In the same manner that if I have a Medicaid contract who for a doctor to provide a service and instead a nurse provides a service, that would be an express lie. Or his claims particular enough as to all their bases and other circumstances. They certainly are and that's what I was going to get to. Under this court's decision in Glenn versus EDO Corporation just last year, the court specifically said there is no requirement of firsthand knowledge. There's nothing in Rule 9B that requires that. There's nothing in the false claims act that requires that. I didn't ask you that. I asked about particularity. They do have particularity on it

. Based on his experience at LASAD, he knows that all of these guards, every single one of them, was not qualified to be a guard. They weren't guards. They were simply people. And he knows that they were shipped off to other bases and they still weren't qualified. And as the contract or rather as the complaint makes clear, How would he know as they were qualified or not when they got to the other bases? Because that's if you read the complaint, your honor expressly says that's the qualification for the contract. And that's why on the final month, they were being reupt. They were filling out these cards falsely so that they could go to the other bases. And then we're getting to a question of proof. How does he know that? Well, he knows because he talks to his fellow guards who ended up being shipped to those the American guards. Then it's supervisors. He speaks something, but you don't have to alleged that at the pleading stage just enough that he says that he knows it. These people can't do the job here and then out of TCI falsifies the records precisely so they can go somewhere else. And meet the same kind of contract. And in Glenn, It doesn't know that he had a first of prior activities that would be the fact of the future. Oh, no, with respect to actually to the very last set on the range, they were gone and were put out there precisely so that they could be qualified for subsequent contracts. Because at that point, the Alliside contract had been canceled. They've been given to another contractor. And so at that time, it was expressly known by all of the Americans that these guards were being falsely qualified for another duty station in Iraq. Mr. Bader then learned from his American colleagues that they did show it. The exact same people still unable to shoot with the false qualifications in the jacket. That was the very reason it was done. And as a support court sending Glenn, there's no requirement that you experience any of this firsthand. Think about that what would mean for the False Claims Act if we required that a related personally experienced every false to the deal ledges. Well, no one could ever bring a false claim to act unless it was in the very smallest possible company. You could, a related from here things. First hand, second hand, third hand, doesn't matter. What matters is that he brings to the court a set of allegations that plausibly raise the inference that a fraud has occurred and that the United States has paid for that fraud. Thank you very much. Thank you. Miss Lee. Thank you, Your Honor. I am Tarlie for a pelly triple candy. We have to begin with the premise that the False Claims Act is a fraud best you. This is a fraud case and fraud has to be pled with particularity. To plead fraud with particularity, case law has held you need the time of the misrepresentation, the place of the misrepresentation, and the contents of the misrepresentation, as well as the identity of the person making the misrepresentation, and what was gained thereby. Let me ask you a preliminary question. We didn't talk about earlier and that is the district court here dismissed this matter without prejudice. That seems the indicate typically when you do that, you can come back to this court. You should come back, you don't come here before that happens. Is this a final judgment? It is because the... Not just because you agree, but that doesn't make a difference. You agree, but

... In this case, the government has elected to stand on their complaint. They have suggested by appealing and in their supplemental briefs and response to your question that they are going to stand on the facts as they are and go forward. You can conclude they couldn't amend or that they don't want to amend, but the complaint is the complaint now, and we are here with what is now deemed final for purposes of being able to judge the appeal. It means they are not going to go back and change their facts. That might be because they don't have them, and they can't plead it with particularity, or it might be because they want to take this fact pattern and see if they can expand the law. For our purposes, it means we are here, and we can't be sent back, and we can't start over again at the beginning and do all this again if they amend later. Where we are now is here to decide with the Court's gatekeeper function if this is good enough to get through. If there is a certification in support of this demand for payment, would you lose? The court below ruled that there was not sufficiently alleged, a certification in support of the demand for payment under the contract. If there were a certification, would the district court be wrong and you would lose on this argument? I want to make sure I am understanding the question correctly. You mean if the facts were completely different? No, exactly. If we were to find there is a certification, let's say for instance, let me change one fact. I will forgive you if I have a medical. If only that in the way it says we hear by certify that we admit every obligation under the contract, would that make it a different case? It would make it a different case, Your Honor. And so it would make a difference to the outcome of the case. It would make a difference to the outcome of the analysis of implied certification, express certification. I would suggest that however that analysis comes out, you would still make it particular. It would make it different to the outcome of the case. In other words, the district court would be wrong and this case could continue wrong. I don't think it would, Your Honor. It wouldn't change the outcome for the reason that I am getting to, which has to do with 9B. 9B requires particular reason. Even the side 9B. Even the side 9B, I just want to focus on this issue. If there was an express certification on that invoice, you with me? I hear you, Your Honor. That we have made every condition. Would you be wrong in your argument? You would lose your argument. I don't think we would, Your Honor. And the reason is for the question that you posed earlier. Doesn't the fourth element of a false claim that case requires some causation of payout to the government? I think they are missing that as well. Oh, the certification, that would be the certification in the invoice. We certified to you, government. We met every condition, pay us. And then the government would say, we are paying you based on that express certification. You would lose, wouldn't you? You would, Your Honor. But you don't have anything remotely like that. No, no, no, no. You have to answer that question first, so then we'll walk through it. But I would say this is not an express certification. But in issue that, I said, if the contract said that, if the invoice said, if the invoice said, this is the same question I'm going to ask you, maybe I'm not being clear enough, if the invoice you gave said at the box, said this, by submitting this bill invoice, we certified, we've met every condition of the contract, and you signed it. That would be a statement which was the Port of False claim at correct. I think it might be your honor, but what I'm trying to point out is that where express condition cases have been upheld, it's been for a statute or regulation. I don't know of one where they looked at nothing other than the contract claims. Plucked one

. So in other words, you don't think that would make a false claims at case if the person knowingly misrepresented a material fact. You don't think that that would make a certification for a false claim at the court. I think you could do that, Your Honor. I'll tell you that I think you could make that the law, but what I'm saying is that it's not the law now. I don't think it is, Your Honor. I think when you look at an express certification case, they're going back to a regulation or a statute or some external obligation. They're looking at OCI obligations that trigger this affirmative obligation. So you would think that under the law has it been decided that way? Or you just say it's an open question, my hypothetical. I think the hypothetical you pose would be a case of first impression, because this is the first time the government's trying to do this, but I'm aware of which is... My first impression then, I'm asking this question, and then I'll let everybody else pass. I think I can answer it, Your Honor. Well, you had an answer to it, yeah. Well... It would be how I answer it, yes, for you. It doesn't, Your Honor. Because this is, yeah, we can move on. It's just that this is, I don't think you should do that. But you're not moving on. Is, would that be a statement or conduct which calls the government to pay out a claim? Yes, or not? Yes, they would. They would have the causation, it would be the claim. But you would have to then be deciding that contractual obligations on their own can create expressed certification. Does the certification have to be expressed, may it be implied? In this circuit, we haven't recognized implied certification. I think here... We denied that they just... You have called into question, Your Honor. The circuit has said it's questionable. I would suggest you that... Well, it's first impression again in your mind. Well, it's not. I think the circuit court has had opportunities to opine on implied certification before. Well, it would be first impression as to whether we have to decide it. Well, I mean, so far it looks to me like you had... I think you know I'll give that that out

. I'm not, I'm not your, I'm just saying. You've had the opportunity to decide on implied certification before. It's not the first time that Pellies have argued it with you. The issue of reporting on another way out is... I think you can. And I think it's in 9B. I think it's really important that we focus on the fact that there's no... Is there an expression of this contract? Is there an expression of the contract that the guards who are being paid for under this contract have to be in law enforcement ship shooting... There it is, Your Honor. It is one of 20 and the only person to be prepared... Did the guards in this case... I guess this allegation... The allegation is that they did not. It's one of 20 contractor responses. So we take that. Do you think... So we take that as a fact they didn't meet that requirement. I think you do in the allegations and the complaint. Well, that's where we are right now. Okay. Do you argue on materiality as to that? No, what I'm trying to get to your honor is that they don't have the particularity for the fraud. They don't have the heurre of the fraud. False is false when it's uttered. Fraud is fraud when it's heard. And the government is coming to you insane. We complete fraud with particularity without telling you who heard what went. Could you leave the particularity argument aside for a minute? You can get back to that and you are forced in that. But I'm asking you leave that aside for a second. Is there a false claim act without the particularity? I mean, if you take that off the table, is there a false claim act? As long as we're on the facts of the case and not the hypothetical where there's a kind of certification. On the facts of this case, they also fail in 12v6. They don't have the fourth element

. What they have focused on in materiality is just the third element. You know what? I ask you about materiality. Not what they focused on. I ask you is that material. That's what I ask you. In front of us right now is the fate of qualify. Do you argue the materiality of that? I'm not. I'm not. That's what I ask you. What else do you argue then other than the statement? Leaving aside particularity, is there anything else about a false claims case that you argue with as a case is in front of us right now? There is wrong. If you want to focus on materiality from our argument. You just said you don't argue about that. Well, I think there's an important piece that's been missed. You just said you don't argue. You're an argument about that. I do have one small point that I think will illuminate this a lot and is worth just focusing on. The government got up and argued to you that all over their complaint they say the contracting officers represented it have the duty to look at these records. That's in the complaint at paragraph 25 and 28 and it's referred to 17 times in the arguments. The paragraph they refer to is 7.4 of the task order. There's no such paragraph. Paragraph 7 of the task order which is the contract says the contracting officer is going to go look at three things. 7.1, weapons list, 7.2, ammo list, 7.3, monthly fuel use requirement that the guards be able to be able to shoot properly. Is that a material requirement of this contract? I can make an argument that it's not. If you look at... It can be and we still prevail. But... I didn't ask you that. I don't understand. You don't understand my question or I don't understand your answer. I said... Is that material? Is your argument that the guards can shoot properly? Is your argument that is or is not material to this contract? I think that this contract lays forth the things that... It is just answer it. It is material or is not material. Just tell me that. I think the argument that I want to make to you is not material or is it not? No, Your Honor, may I explain why? No, no, I think that you challenge that. And yours I want to challenge it because what they're focusing on is if then he would have sentence structure that puts the contracting officer with a duty to go look. They tell you to use the all may case to presume that he actually went and looked. But they're filling in a gap they can't show you in the contract because 7.4 is not even there. 7.4 in the task order is what they say they're relying on for the contracting officer's representative is going to go look at these records. They can't tell you he did, they can't tell you when, they can't tell you what they said. But they want you to believe that he did because they say it's at 7.4. I don't know about any review of that. I just asked you to use this material to the contract that the guards would be able to shoot properly. I didn't ask you about who has a requirement to review. I'm not asking any of that. I'm just saying do you think the fact that the guards have to be qualified to shoot is that material to this provision of guards contract? Here's why I'm saying no, Your Honor. Okay, you see? Because the contract lays out three things and only three things that the contracting officer's representative has as deliverables that he will inspect. 7.4 is not on the list. It might have been once because they're mistiding it from somewhere. But do you think that if under this contract, I'm just asking. You provide guards who cannot shoot, cannot shoot, because you have met the contract. Here, the contract gives the contracting officer three things to look at. That's what you should look to to decide materiality. It would be dangerous to start deciding because one characteristic out of 20, I think searching cars is pretty important. I think badging is pretty important. I've been through these checkpoints. Those are a lot more important than can he shoot on a target when in the performance of those duties. Well, I may not be. We won't stop at the check point. I hear you, Your Honor, but these are contract cases where the government doesn't want to... I don't want to believe anymore. You think that the ability to shoot straight, although it's an express provision requirement. It's just not material. That's fine. That's your argument. So you win on that or you win on materiality? Well, I think it's important if you're going to decide on materiality that you go to what the contract says about it to decide that is my point. My point is you argue you win on materiality. What I would like to argue is that we win on the absence of causation. I didn't say that. Don't you argue you win on materiality? I think we could as well, but it's an alternate not anywhere near my primary argument. I didn't suggest that it was. I'm going through the factors of trying to see if there's any agreement is what I was doing

. Just tell me that. I think the argument that I want to make to you is not material or is it not? No, Your Honor, may I explain why? No, no, I think that you challenge that. And yours I want to challenge it because what they're focusing on is if then he would have sentence structure that puts the contracting officer with a duty to go look. They tell you to use the all may case to presume that he actually went and looked. But they're filling in a gap they can't show you in the contract because 7.4 is not even there. 7.4 in the task order is what they say they're relying on for the contracting officer's representative is going to go look at these records. They can't tell you he did, they can't tell you when, they can't tell you what they said. But they want you to believe that he did because they say it's at 7.4. I don't know about any review of that. I just asked you to use this material to the contract that the guards would be able to shoot properly. I didn't ask you about who has a requirement to review. I'm not asking any of that. I'm just saying do you think the fact that the guards have to be qualified to shoot is that material to this provision of guards contract? Here's why I'm saying no, Your Honor. Okay, you see? Because the contract lays out three things and only three things that the contracting officer's representative has as deliverables that he will inspect. 7.4 is not on the list. It might have been once because they're mistiding it from somewhere. But do you think that if under this contract, I'm just asking. You provide guards who cannot shoot, cannot shoot, because you have met the contract. Here, the contract gives the contracting officer three things to look at. That's what you should look to to decide materiality. It would be dangerous to start deciding because one characteristic out of 20, I think searching cars is pretty important. I think badging is pretty important. I've been through these checkpoints. Those are a lot more important than can he shoot on a target when in the performance of those duties. Well, I may not be. We won't stop at the check point. I hear you, Your Honor, but these are contract cases where the government doesn't want to... I don't want to believe anymore. You think that the ability to shoot straight, although it's an express provision requirement. It's just not material. That's fine. That's your argument. So you win on that or you win on materiality? Well, I think it's important if you're going to decide on materiality that you go to what the contract says about it to decide that is my point. My point is you argue you win on materiality. What I would like to argue is that we win on the absence of causation. I didn't say that. Don't you argue you win on materiality? I think we could as well, but it's an alternate not anywhere near my primary argument. I didn't suggest that it was. I'm going through the factors of trying to see if there's any agreement is what I was doing. And if they can get through materiality, which I don't think they can be... I got it. I know that. I guarantee we know you think they can't get through that. But then I think they have to show that there was some claim that came to be paid. And what they're trying to do is give you scenarios two alternate ones where you can find false claims at liability without anything but a contractual violation that they say was knowing. That's what we're trying to do. What else do you think is required? I think they have to attach it in some way to a submission. I think that's flat better. What about the invoice? That's why I was getting too undisturbed. There's nothing false in the invoice, you know. There's nothing in a certification in the invoice. Is there a certification in the invoice? There is not. And there's not... I know if you say there's nothing in the certification. Oh, there is no... I just missed it. There's not a certification in the invoice. There's not an express. Is the submission of an invoice an implicit certification that we should get paid because we have fulfilled the contract? That's not what case law that have recognized implicit certification have held it to be. In fact, that's been discussed by this sort of engulfing. Do you think had you attached to your invoice a comment that the guards were asking you to pay for here cannot shoot? Do you think you would have been paid? No, I don't. Why is it that? Why do you think that? That's so. Because that's the submission. And what you're missing in this case... No, no, no, no. It wouldn't be a false statement. It would be a truthful statement. Here's our bill. And we've attached to a statement that the guards you're paying for a government cannot shoot. That's a true statement. That's not a false statement. You think you would have been paid? Your Honor, I wouldn't have been paid because that would be a breach of contract case. They would have issued a pure notice and they would have gone through all the mechanisms that already exist to make sure we weren't paid. I sure would. You think that.

. And if they can get through materiality, which I don't think they can be... I got it. I know that. I guarantee we know you think they can't get through that. But then I think they have to show that there was some claim that came to be paid. And what they're trying to do is give you scenarios two alternate ones where you can find false claims at liability without anything but a contractual violation that they say was knowing. That's what we're trying to do. What else do you think is required? I think they have to attach it in some way to a submission. I think that's flat better. What about the invoice? That's why I was getting too undisturbed. There's nothing false in the invoice, you know. There's nothing in a certification in the invoice. Is there a certification in the invoice? There is not. And there's not... I know if you say there's nothing in the certification. Oh, there is no... I just missed it. There's not a certification in the invoice. There's not an express. Is the submission of an invoice an implicit certification that we should get paid because we have fulfilled the contract? That's not what case law that have recognized implicit certification have held it to be. In fact, that's been discussed by this sort of engulfing. Do you think had you attached to your invoice a comment that the guards were asking you to pay for here cannot shoot? Do you think you would have been paid? No, I don't. Why is it that? Why do you think that? That's so. Because that's the submission. And what you're missing in this case... No, no, no, no. It wouldn't be a false statement. It would be a truthful statement. Here's our bill. And we've attached to a statement that the guards you're paying for a government cannot shoot. That's a true statement. That's not a false statement. You think you would have been paid? Your Honor, I wouldn't have been paid because that would be a breach of contract case. They would have issued a pure notice and they would have gone through all the mechanisms that already exist to make sure we weren't paid. I sure would. You think that... You think that at least that argues for a breach of contract. It does. You just think that that's not elevated to a false claim. I think there's a lot of space between contract violation that you have alleged here. And what you ought to have if you want to bring a false claim. This Court has recognized that in Canada. Well, I mean, we're engaging in, of course, the legal argument here, and we have to stick with in terms of how this is put. The bottom line, when we look at the facts of this case, do you maintain that it's not fraudulent when you submit claim for payment? You know the government wouldn't pay it if they knew these guards were not qualified. I'm saying this claim's not sufficient, Alex. I'm saying that in terms of the allegations of it, but I'm talking about the point here, that's under the facts of it. I think it's... You submit a claim for payment. And you know, when you submit that claim for payment, your guards aren't qualified. And you know the government won't pay it. And you know that because you've falsified records. You may... you had people to come up and say, oh, put down that he's qualified. I mean, there's a reason for... so you know they can't. And we have that set of facts. And we're at the pleading stage of this situation. And yet we're dealing with a very serious situation. This is cutting into the chase on this. And I don't know if we're going to go to some plot of a matter of not in terms of certification. But we are talking about protecting American soldiers. And you got someone over there putting someone up there protecting them. Who can't even holler a hole or rifle. Now that may be something we can sit in here and argue in this court back and forth for how we're going to go on this thing. But the bottom line is we're at a pleading stage. I'm not saying we go beyond that, we can't get some more facts. And to get tied up on legalistic terms about express certification, whether or not we're going to recognize an implied one, or whether the fact remains, those basic facts do exist, don't they? You did know that these guards were to be qualified. You didn't know that. You did know that you hired people who were absolutely not qualified. Absolutely could not. Had no qualification whatsoever. They were put in a position of God in an American base where their soldiers up there. There's a reason they're there. They took money

.. You think that at least that argues for a breach of contract. It does. You just think that that's not elevated to a false claim. I think there's a lot of space between contract violation that you have alleged here. And what you ought to have if you want to bring a false claim. This Court has recognized that in Canada. Well, I mean, we're engaging in, of course, the legal argument here, and we have to stick with in terms of how this is put. The bottom line, when we look at the facts of this case, do you maintain that it's not fraudulent when you submit claim for payment? You know the government wouldn't pay it if they knew these guards were not qualified. I'm saying this claim's not sufficient, Alex. I'm saying that in terms of the allegations of it, but I'm talking about the point here, that's under the facts of it. I think it's... You submit a claim for payment. And you know, when you submit that claim for payment, your guards aren't qualified. And you know the government won't pay it. And you know that because you've falsified records. You may... you had people to come up and say, oh, put down that he's qualified. I mean, there's a reason for... so you know they can't. And we have that set of facts. And we're at the pleading stage of this situation. And yet we're dealing with a very serious situation. This is cutting into the chase on this. And I don't know if we're going to go to some plot of a matter of not in terms of certification. But we are talking about protecting American soldiers. And you got someone over there putting someone up there protecting them. Who can't even holler a hole or rifle. Now that may be something we can sit in here and argue in this court back and forth for how we're going to go on this thing. But the bottom line is we're at a pleading stage. I'm not saying we go beyond that, we can't get some more facts. And to get tied up on legalistic terms about express certification, whether or not we're going to recognize an implied one, or whether the fact remains, those basic facts do exist, don't they? You did know that these guards were to be qualified. You didn't know that. You did know that you hired people who were absolutely not qualified. Absolutely could not. Had no qualification whatsoever. They were put in a position of God in an American base where their soldiers up there. There's a reason they're there. They took money. They submitted payments to get money for it continuously. And to get those payments, they falsified records. No question about it, right? In fact, the latest is they had him to come and put his name down to these people qualified. Any of that wrong? I just want to point you before you put something. One little spot. Anything wrong with it? One little spot. What is it? The part where you said they knew somebody was coming to inspect. No, no. In fact. Or to review where you just said that they think... Not about my review, I'm not talking about the reality. The reality that you put God's own that place of that, they were absolutely unqualified. And the reality that you've got someone to represent to the government or to whomever. Whether or not it's an inspector or whatever, to put on something that these people are okay. I want to concede that this is the fact pattern you describe as a fraudulent scheme. There are lots of cases with appalling fraudulent schemes to hold somebody responsible here. Well, you could dismissal without prejudice. So I assume that's... You could become up. So what do you tell them? Didn't they do something? Is it they did not put the right document to show that the contract required these guards to be qualified? And is that the problem? What you have to have is something more in the false claims act. You can have a fraudulent scheme that is alleged to be a criminal. You've got to figure out what that is. Because there's no way in the world we can't, as a court or anybody in this country, allow a contract to do what these facts indicate here. Because that's a problem. And we cannot write an opinion that says, okay, everything that's here, you can have people come up and put down wrong, tight things. You can get the wrong guards to put on a base for millions of dollars. And then submit an invoice to get hundreds of thousands of dollars for people who absolutely have no qualifications. Now, I'm just dealing with the basic facts of it. I understand you're dealing with your case and we're going to side this on a legal basis. But I'm telling you why this case presents an interesting and horrible facts scenario. You're on it, though. Because you are representing here, judge, make this as legal as possible. Require. There's a certification. Even if it is one, that's not going to be enough. And when we show as a result of this of these facts that we did something wrong here, and we put those guards up there, and we took money for them, and we knew the government cared about it, because we went and got someone to sign over here to falsify it. There's some sense of outrage that comes from this law not worth spending. The outrage can go to the fraudulent scheme. It can go to cure notices. It can go to other types of ways you can remedy that scheme. Those, as you described them, horrifying facts are why this

. They submitted payments to get money for it continuously. And to get those payments, they falsified records. No question about it, right? In fact, the latest is they had him to come and put his name down to these people qualified. Any of that wrong? I just want to point you before you put something. One little spot. Anything wrong with it? One little spot. What is it? The part where you said they knew somebody was coming to inspect. No, no. In fact. Or to review where you just said that they think... Not about my review, I'm not talking about the reality. The reality that you put God's own that place of that, they were absolutely unqualified. And the reality that you've got someone to represent to the government or to whomever. Whether or not it's an inspector or whatever, to put on something that these people are okay. I want to concede that this is the fact pattern you describe as a fraudulent scheme. There are lots of cases with appalling fraudulent schemes to hold somebody responsible here. Well, you could dismissal without prejudice. So I assume that's... You could become up. So what do you tell them? Didn't they do something? Is it they did not put the right document to show that the contract required these guards to be qualified? And is that the problem? What you have to have is something more in the false claims act. You can have a fraudulent scheme that is alleged to be a criminal. You've got to figure out what that is. Because there's no way in the world we can't, as a court or anybody in this country, allow a contract to do what these facts indicate here. Because that's a problem. And we cannot write an opinion that says, okay, everything that's here, you can have people come up and put down wrong, tight things. You can get the wrong guards to put on a base for millions of dollars. And then submit an invoice to get hundreds of thousands of dollars for people who absolutely have no qualifications. Now, I'm just dealing with the basic facts of it. I understand you're dealing with your case and we're going to side this on a legal basis. But I'm telling you why this case presents an interesting and horrible facts scenario. You're on it, though. Because you are representing here, judge, make this as legal as possible. Require. There's a certification. Even if it is one, that's not going to be enough. And when we show as a result of this of these facts that we did something wrong here, and we put those guards up there, and we took money for them, and we knew the government cared about it, because we went and got someone to sign over here to falsify it. There's some sense of outrage that comes from this law not worth spending. The outrage can go to the fraudulent scheme. It can go to cure notices. It can go to other types of ways you can remedy that scheme. Those, as you described them, horrifying facts are why this... You're saying something is wrong here, but the government has it filed the right judgment. They haven't filed a false claims act allegation. They haven't... They are something else they could file. I don't... According to them, they can't. So nothing can get filed. No, you're on it. They can do a cure notice. They can do a breach of contract claim. They can proceed in many other types of forms that this is where I'm going. There is a remedy. They can sue and get the money back if they think the contract was violated. That's not what they did. They stop protecting soldiers if people overseas. I don't think money is the issue here. Well, you're on her. You're assuming that every single allegation in this complaint is true? I'm assuming if you can do this someone else can. It's a contract violation they've alleged. Understand. I'm assuming if you've done this, this is a blueprint for how to go somewhere, grab someone off the street. It's not a question of whether or not they're regarding them because they're certainly your guns and soldiers who can qualify for anything. They just went and grabbed them someone and stuck them up there with rifles in their hands. Because it's been Americans, they go to do the same thing. But the question is, you know why you have this $9 million contract. And you know this otherwise let them freeze to fan the base. Which I quite frankly don't understand what else I've done. But I guess they have a few national reasons. You're on her. We're here because of that reaction to these facts. Because if you ever were going to look at a contract violation that is on its face, there's legally nothing more than one element out of 20 contract violations. Just legally that's all there is. And they're going to ask you at the for circuit to make a new law about the false claims act to fit it. You know what? Bring a set of bad facts up here. You know what bad facts are. I do and I'm urging you not to go there. Bad facts up this case. You said you have some first impression issues here and maybe we need to take it those first. Take a look at those first impression issues

... You're saying something is wrong here, but the government has it filed the right judgment. They haven't filed a false claims act allegation. They haven't... They are something else they could file. I don't... According to them, they can't. So nothing can get filed. No, you're on it. They can do a cure notice. They can do a breach of contract claim. They can proceed in many other types of forms that this is where I'm going. There is a remedy. They can sue and get the money back if they think the contract was violated. That's not what they did. They stop protecting soldiers if people overseas. I don't think money is the issue here. Well, you're on her. You're assuming that every single allegation in this complaint is true? I'm assuming if you can do this someone else can. It's a contract violation they've alleged. Understand. I'm assuming if you've done this, this is a blueprint for how to go somewhere, grab someone off the street. It's not a question of whether or not they're regarding them because they're certainly your guns and soldiers who can qualify for anything. They just went and grabbed them someone and stuck them up there with rifles in their hands. Because it's been Americans, they go to do the same thing. But the question is, you know why you have this $9 million contract. And you know this otherwise let them freeze to fan the base. Which I quite frankly don't understand what else I've done. But I guess they have a few national reasons. You're on her. We're here because of that reaction to these facts. Because if you ever were going to look at a contract violation that is on its face, there's legally nothing more than one element out of 20 contract violations. Just legally that's all there is. And they're going to ask you at the for circuit to make a new law about the false claims act to fit it. You know what? Bring a set of bad facts up here. You know what bad facts are. I do and I'm urging you not to go there. Bad facts up this case. You said you have some first impression issues here and maybe we need to take it those first. Take a look at those first impression issues. But you in front of a judge you didn't find the facts bad enough. So just because the facts are bad that mean that you're going to lose is an application of law. Because if you do this. And what do you think is the one single biggest flaw in the government's assertion that this is false claims. What is the one thing? They brought a false claims act case without a false claim in it. Your honor. They could have brought a different kind of case. And it's okay. Or you get just but that's just sort of captions. What? What? Why is this not a false claim? Tell me why it's not the end voice. I'm focusing on the end voice. Why is that not a false claim? Tell me why that's not. Because it doesn't include a false hit. You cannot say that guards are not guards. I mean as you didn't know. When he wasn't. Or was he so reaching one thing isn't enough. It can't be your honor. If it was you'd be in a worthless services context and were clearly not there. There are 19 of 20 that aren't even alleged they failed that. So you don't hinge your argument then that there is no implied certification in the end voice. You don't argue that point. I don't think there is. I thought you were going to say there was no certification at all. No, there's no express certification. There's no implied certification. There's no precondition of the statement. The biggest argument I actually biggest point is to breach one out of 23 things. It doesn't make it a false claim. That and this, your honor. I actually, I just, okay, I'm giving you another 15 seconds to tell me. Because I'm going to make him answer to it. There's your chance to make him answer to your argument. What is the single biggest flaw in their false claims act case? I think it's that a false statement is false when uttered and a fraud is an allegation when it's heard. And they can't allege for a you time place and content of the hearing here. And they're telling you we don't even have to try to please just wave that off. Okay, thank you very much. Thank you. Mrs. Garber, you've heard what they see is flowing you okay? I understand your honor. And the important positions. Yeah. Before you get started. If is the government's theory, if the contractor submits their claim for payment. And they know that any of the bullet items, 20 some bullet items on J89 have not been met

. But you in front of a judge you didn't find the facts bad enough. So just because the facts are bad that mean that you're going to lose is an application of law. Because if you do this. And what do you think is the one single biggest flaw in the government's assertion that this is false claims. What is the one thing? They brought a false claims act case without a false claim in it. Your honor. They could have brought a different kind of case. And it's okay. Or you get just but that's just sort of captions. What? What? Why is this not a false claim? Tell me why it's not the end voice. I'm focusing on the end voice. Why is that not a false claim? Tell me why that's not. Because it doesn't include a false hit. You cannot say that guards are not guards. I mean as you didn't know. When he wasn't. Or was he so reaching one thing isn't enough. It can't be your honor. If it was you'd be in a worthless services context and were clearly not there. There are 19 of 20 that aren't even alleged they failed that. So you don't hinge your argument then that there is no implied certification in the end voice. You don't argue that point. I don't think there is. I thought you were going to say there was no certification at all. No, there's no express certification. There's no implied certification. There's no precondition of the statement. The biggest argument I actually biggest point is to breach one out of 23 things. It doesn't make it a false claim. That and this, your honor. I actually, I just, okay, I'm giving you another 15 seconds to tell me. Because I'm going to make him answer to it. There's your chance to make him answer to your argument. What is the single biggest flaw in their false claims act case? I think it's that a false statement is false when uttered and a fraud is an allegation when it's heard. And they can't allege for a you time place and content of the hearing here. And they're telling you we don't even have to try to please just wave that off. Okay, thank you very much. Thank you. Mrs. Garber, you've heard what they see is flowing you okay? I understand your honor. And the important positions. Yeah. Before you get started. If is the government's theory, if the contractor submits their claim for payment. And they know that any of the bullet items, 20 some bullet items on J89 have not been met. Is that a false claim or breach contract? That's a false claim, Your Honor. If they know that they haven't satisfied those things, which are conditions of payment. Yes, they're conditions of payment of the contract. And so yes. And that that any provision that's in that. Whatever they call it statement of work. I haven't I haven't focused on all the different things, but they're actually it's all on one page J99 statement or other provisions. I understand contract. Is it only the ones that are on sex should under section five? I'm not sure whether there aren't other conditions. The notion that like just because there are a lot of conditions. Is it different, Jay, between what's a breach contract and what's a false claim? So let's say if we looked at section 12, unauthorized items, contractor has to have. Where section 12, I'm sorry. Section 12 of that page 102. And they don't have a letter of authorization. And they don't know. And the contractor knows they don't have a letter of authorization for the guards to have cameras on the base. Is that breach contract or false claim? I don't think the distinction between breach of contract and false claims, the relevant distinction. I think the question is you're asking whether it is a condition of payment, whether the government could withhold payment if that has been breached. And the distinction between contract breach, mere contract breach, which they keep sort of using that terminology. And false claims act violation is when you know and only do it. And you know that the government cares about it. And the part of the reason why we're focusing on the falsified marksmanship, scorecards is that's one indication that they know. No, no, no, no. Why wouldn't the government care about every provision in the con. Well, government does, and that's why I answered the question at the beginning. Yes, you violate. No, there's things between a breach contract and false claims in your opinion. I can't answer it that way because there is. The distinction, but the distinction you're on. Why is he a jurisdiction between breach of contract and false claims? Yes, you're on. And the distinction is what is knowledge, is knowledge of what you're doing and knowledge of the fact that it matters to the government. In other words, he matters to the government. Is that materiality? Yes, that's a materiality. That's the element of materiality. It would have provisions in the contract that aren't material. I think you're on that we have to recognize that there is a... Yes, or no. Yes, I do believe that's possible, Your Honor. I'm sorry? I heard you say that. And that's why I'm saying it. Apparently you thought so because I had trouble getting out of it. Well, maybe I'm just moving slowly today. But the point is when you know that the government cares about it

. Is that a false claim or breach contract? That's a false claim, Your Honor. If they know that they haven't satisfied those things, which are conditions of payment. Yes, they're conditions of payment of the contract. And so yes. And that that any provision that's in that. Whatever they call it statement of work. I haven't I haven't focused on all the different things, but they're actually it's all on one page J99 statement or other provisions. I understand contract. Is it only the ones that are on sex should under section five? I'm not sure whether there aren't other conditions. The notion that like just because there are a lot of conditions. Is it different, Jay, between what's a breach contract and what's a false claim? So let's say if we looked at section 12, unauthorized items, contractor has to have. Where section 12, I'm sorry. Section 12 of that page 102. And they don't have a letter of authorization. And they don't know. And the contractor knows they don't have a letter of authorization for the guards to have cameras on the base. Is that breach contract or false claim? I don't think the distinction between breach of contract and false claims, the relevant distinction. I think the question is you're asking whether it is a condition of payment, whether the government could withhold payment if that has been breached. And the distinction between contract breach, mere contract breach, which they keep sort of using that terminology. And false claims act violation is when you know and only do it. And you know that the government cares about it. And the part of the reason why we're focusing on the falsified marksmanship, scorecards is that's one indication that they know. No, no, no, no. Why wouldn't the government care about every provision in the con. Well, government does, and that's why I answered the question at the beginning. Yes, you violate. No, there's things between a breach contract and false claims in your opinion. I can't answer it that way because there is. The distinction, but the distinction you're on. Why is he a jurisdiction between breach of contract and false claims? Yes, you're on. And the distinction is what is knowledge, is knowledge of what you're doing and knowledge of the fact that it matters to the government. In other words, he matters to the government. Is that materiality? Yes, that's a materiality. That's the element of materiality. It would have provisions in the contract that aren't material. I think you're on that we have to recognize that there is a... Yes, or no. Yes, I do believe that's possible, Your Honor. I'm sorry? I heard you say that. And that's why I'm saying it. Apparently you thought so because I had trouble getting out of it. Well, maybe I'm just moving slowly today. But the point is when you know that the government cares about it. You don't lie about it. I didn't put it this way. You don't lie about things. You know the government doesn't care about it. There were some innocuous things. They might lie about it. You might. They can't do this, not to do this. They can't lie about it. You might lie about something. That's not material because you want one of those government defense contractors awards. Who knows about all that stuff? But do you think the distinction between a breach of contract and a false claim when you ask for payment under the contract? You want to talk about two different provisions of the contract? I think you think it's materiality. No, I think it's knowledge, Your Honor. You know that you're violating the contract. What about you know that you haven't got the alternative? You know that. You know that. Yes, that would be a false claim violation. Yes, Your Honor. I am agreeing with that. I'm sorry if I'm being unclear. So anytime you breach the contract. You're a new vision. Yes, right. And you could. And the government could withhold payment because of that. And that's because it's an express contract. Well, I can't government withhold payment. Every provision of a contract. And that's the only place where I equivocate it because I do think that. And this is part of contract law that there are provisions that are so insignificant that you would not say go to the very essence of what the government contracted for. So we are so far away from that here. No question it is significant that God's in quality. Absolutely, Your Honor. That's what I'm trying to say. It's not like our United States soldiers who are overfleeze on bases. And the fact that you know that. And you've got to believe that's important to the government. There might be some things in that contract that are not significant. Yes. What uniforms they wear. Yes. How are time they get up in the morning. But the fact that they're very bases for them being there. To stand out with a gun. And to defend them from people who have come in

. You don't lie about it. I didn't put it this way. You don't lie about things. You know the government doesn't care about it. There were some innocuous things. They might lie about it. You might. They can't do this, not to do this. They can't lie about it. You might lie about something. That's not material because you want one of those government defense contractors awards. Who knows about all that stuff? But do you think the distinction between a breach of contract and a false claim when you ask for payment under the contract? You want to talk about two different provisions of the contract? I think you think it's materiality. No, I think it's knowledge, Your Honor. You know that you're violating the contract. What about you know that you haven't got the alternative? You know that. You know that. Yes, that would be a false claim violation. Yes, Your Honor. I am agreeing with that. I'm sorry if I'm being unclear. So anytime you breach the contract. You're a new vision. Yes, right. And you could. And the government could withhold payment because of that. And that's because it's an express contract. Well, I can't government withhold payment. Every provision of a contract. And that's the only place where I equivocate it because I do think that. And this is part of contract law that there are provisions that are so insignificant that you would not say go to the very essence of what the government contracted for. So we are so far away from that here. No question it is significant that God's in quality. Absolutely, Your Honor. That's what I'm trying to say. It's not like our United States soldiers who are overfleeze on bases. And the fact that you know that. And you've got to believe that's important to the government. There might be some things in that contract that are not significant. Yes. What uniforms they wear. Yes. How are time they get up in the morning. But the fact that they're very bases for them being there. To stand out with a gun. And to defend them from people who have come in. If that's not there and you go and ask for money for people who are doing this. That's got to be material. Yes, Your Honor. I don't think anybody is quite a fool for these other ones. I agree, Your Honor. And what I would add to that is that if you could. It's not a question of what is material on the top end. It's the question we were probably with you. What is the distinction from the government between a provision that clearly is material. And one that isn't. Right. Because you have to write the case and you have to set the law. You've been doing very little to help us understand. Your argument is anything in that contract is presumptively false. No, no, no, you're wrong. The statute defines materiality. And we're relying on the statute. We're relying on the question. I ask you about materiality. That's what I ask you about. I have questions. I'm trying to find in your materiality. Yes. But then the question that I think I maybe got sidetracked on was when you asked the distinction between contract and a false claim. And the question there is knowledge there. That's what distinguishes those two things. Can I just say one more thing? Knowledge of a material matter or knowledge of any matter? Knowledge that you're violating or contractual requirement. And you're nonetheless saying government pay me even though you know that you shouldn't be eligible for payment. Okay, let me ask one more time. Do you think the key is your knowledge or your knowledge of a material breach? It is your knowledge. Okay. And can I just say one more thing? Sure, I'll give you a second. Ultimately, their side boils down to if you're clever enough to avoid seeing anything false on the face of the invoice. Then you can avoid false claims at liability. That is not the law. There are numerous cases including this course decision in Harrison. Thank you. Thank you very much. Appreciate the argument from all of us. Step down, great counsel. And go to the last argument for the day.

The Honourable, the Judges of the United States Court of Appeals for the Fourth Circuit. All right, thank you very much. Please be seated. The next case is USA versus Triple Canopy. Ready to hear, Mr. Scarborough. May I please the Court Good Morning, Honour. Charles Scarborough, Department of Justice for the United States. I'd like to try to preserve three minutes for a bottle of possible. You can try. In this false claims I case, the United States alleges that defendant Triple Canopy fraudulently billed the Army for guards to protect a military base in a dangerous area in Iraq while knowing that the Ugandan Nationals, that it was supplying to perform this critical function, had not passed a basic marksmanship test. Was this the breach of an expressed provision of the contract? Yes, Your Honor. What provision was that? It was it's embodied in a task order. That's at J-99. It's at the very bottom of the page. Is there any dispute that this is an expression of the contract? No, Your Honor. I don't believe there is. And that requirement was what? Just generally. Well, it's that they passed a marksmanship test. Basically, I mean, these people are going to basically replace Marines. They need to be able to say it's just that they have to pass the marksmanship. It's qualified. An objective test. They have to hit 23 out of 40 at a target at a specific range with the guns they were going to get. Every breach of contract. Absolutely not, Your Honor. What makes the difference? The difference here is the knowledge and the falsity that underlies it. Because not only here, the TCI sort of bill for something that the government that didn't meet the specifications that the government had bargained for, they also engaged in an extensive campaign to falsify that by falsifying the marksmanship scorecards, which shows not only that they knew, but also that they knew that this was something that the government cared about. In other words, that it was a condition of payment, that it was relevant to use other terminology from the false claims act world, that it was material. No, Your Honor. Otherwise, they wouldn't have been paid. And the complaint makes that very clear at many places. It says specifically, all over the complaint, basically, that if we knew that these guys had not passed the marksmanship test that we contracted for, that we would not in fact have paid for these people. That makes perfect sense. Are the files available to the government? Yes, Your Honor. The files were available, but they were falsified. And there were actually- Were they ever reviewed by the person to whom they were made available? They were extensive allegations that that was what was required under the contract? Well, but here's the point, Your Honor. No, no, no, no. The point is you have to answer my question. Was there ever a review of these falsified documents in the records by the government person tasks to do such a review? Did they have a look at the records? The reason why I'm answering the way I am, Your Honor, is not to evade the question, but it's because we're at the pleading stage. And so what matters is what is alleged in the complaint? The alleged one. And what is alleged in the complaint? And again, what we have to show is that the falsified records were capable of influencing the government's payment decision. Not that they- The government actually relied on. That's perfectly clear from the statute and from this court's decisions in Harrison. So here's some things that are alleged in the complaint, which goes to your question. There's no allegation that- There's no allegation either way that the person could have or couldn't have. The point you argument is that's not necessary. You just have to say it affected the payment decision. That's correct, Your Honor. And let me sort of give you some of the things that are in the complaint that show that it was clearly capable of influencing. Okay. And it affected the payment decision because the contractor didn't tell the government about it. Well, and we're even worse than that. The contractor falsified, basically, lied about the fact that these guys had passed the Marchment Test when they hadn't. And repeatedly did this on a monthly basis. This is an ongoing thing. Whoever the allegation of the government saw that information will not be allowed. That's what I'm trying to get to is that the allegations here are that, first of all, that the contract says that the scorecards had to be in the file. This is all going to whether it's capable of influencing the government's payment decision. That the officials were required to review the file. Is falsification of the documents, is that essential to your argument? No, it's not your argument. It's helpful to your argument. It's absolutely helpful to your argument. Not essential. No, no, your honor. And I mean, to the extent that you want me to respond to that right now, the issue is there. Well, but let me expound upon that because the core part of your argument is that we did not get what we bargained for. What we bargained for was guards who could shoot straight. In the same way with that, when the government asks for gasoline with an octane, I'm using an example from the SAIC decision in the DC Circuit, you ask for gasoline with an octane rating of 89 and someone supplies an octane rating of only 87. If you know about that and you submit it to the government, it doesn't matter what you say on the face of the claim at all. You are submitting something that you know that the government has not bargained for. And that's the very essence. Is there been a certification in this case? A statement on which the government can rely, you know, back to four of the requirements. Is there been a statement? Well, there have been statements. They were the statements in the score cards. There are also statements on the claims themselves that we are giving you guards which in this context, we believe constitute express false statements on the face of the invoice. Now, the district court, well, they are guards, aren't they? Well, they're guards. They're guards. They can't shoot. And that's, I think that's the fundamental problem here, Your Honor. In this context, we made very clear in the contract that we need guards who can shoot. You can't just say, it's sort of like your scrap case. You're giving you people that essentially can't do the essential function that we want them to do. But our point is that while we have that express false statement and you may agree or not as to whether that's sufficiently expressed. I just looked at from the Western House, the Venerable case, back to number four, basically. The statement or conduct calls the government to pay out a claim. How do you qualify there? Well, again, we clearly have that in the sense that when the invoices are submitted, they're saying, hey out. The invoice. The invoice is one part of it. And again, we also think that the statement. And again, you brought up. What else is there other than the invoice? Well, there's the falsified score cards. And again, you brought up Harrison, which I think is... That didn't, that didn't. That falsified card didn't cause you to be paid, did it? Well, yes, absolutely it did. It was necessary to basically put those cards into the file. That was a requirement of the contract as well. Those were some of the things I wanted to ask. They had asked for payment over that. Would you have a false claim? No, there has to be some nexus to payment. That's what material is all materiality is all about. So is the invoice that you look to a statement, isn't it? No, you're on. Well, that can be. That is one thing that... I want to get this straight. So by falsifying their records and putting that in the file, that's all that happened. And you never got any requests for pay after that. That would be a false claim, that. No, you're on. And I want to be... It says a statement or a conduct that caused the government to pay out a claim. So how is it anything other than the invoice? Okay, can I try to respond to that? The provision that we're talking about for the falsers provisions here. A1, A and A1B. For the false statements, the falsified scorecards. What we are relying on is A1B claim. And I want to read the language because the language is actually very important. It's knowingly makes uses or causes to be made or used a false record or statement material to a falser fraudulent claim. Our point is that the scorecard, which the contract required you to put in there, which everyone knew contracting officers, auditors, and other people were going to look at to decide... Isn't that a false statement? Doesn't underlie that? But how does that underlie the false claim? Because in order to get your claims paid that you submit later, you have to have those statements in there under the term. Does it have to be known to the government? Yes, you're... Well, again, you know, you're on it? Yes, isn't it? It's false claim because it has the cause of the government to pay. Isn't that... The next is... Not a fight you, but then it says it has the cause of the government to pay. The next is materiality. And as this court said in the Harrison case, again, there was a materiality issue there. And it was the false statements that the beginning were about a conflict of interest. Yes, you hear it's not materiality, I don't think. Well, it's truly material. Well, I agree with the honor on that. But I'm talking about... But you have an answer to that. I'm going to leave you alone. But I ask you about the statement of conduct calls the government to pay out a claim. Pay out a claim is the operative word and a phrase, isn't it? Well, you're on a makeshift call. I think you're... I think you're focused on A1A, the language there. And that's why I read you the language from A1B. Under A1A, we don't have to show a false statement of any kind. It's sufficient that the government doesn't get what it's bargained for. So that's why I'm saying that this is not a necessary part of our claim, that the fact that there were falsified scorecards, if they had just basically not given us guards and they had not said anything on the space of the payments, we would still win the case. But we have more is the point here. And the point is also that materiality is defined in the statute and it means having a natural tendency to influence. There can really be no argument here that these falsified scorecards weren't capable of influencing the government's payments decision. Did you have a falsified scorecard with this just be a breach of contract? No, you're on. That's what I'm trying to say is that it would be an A1A case only. We would not have an A1B claim because we would not have any false statements. And again, I'm assuming that you're going against us on the notion that the claim about the guard, same billing for guards is not an express false statement. We think that is expressly false as well. There's sort of three independent ways in which we think we win this case. You're on the allegations that they did not function. The contractual of those guards, they did not rebuild this marksmanship requirement. Yes, I would object to the characterization as only. Yes, they didn't do the main thing that guards are supposed to be able to do, which is the shoot straight. There's no allegations in here that a bunch of calibends showed up one day in the shot at him and they missed. None of that matters, Your Honor. Again, it goes back to the very essence of what the false claims act was enacted in the Civil War to prohibit. You didn't claim that the guards didn't show up for work. No, we're not, Your Honor. But you're claiming he's asked only in your claim here based on they weren't guards because they couldn't do the express contract provision requiring the marksmanship qualification. Yes, not anything more than that. Well, the more to that is there is knowledge in that they, they, I don't know more to your claim. What do you claim is over, isn't it? That they weren't qualified. That's where I've brought you of their inability to shoot properly. That's the only part of it, isn't it? That's correct. But again, I guess I'm sort of objecting to the only part because that's like the very essence of what we asked for here. And again, what the purpose of the false claims act was. I asked you if that's the only proof that you have. Okay. We asked you that's all that you claim. Right. I don't mean to be fighting unnecessarily with the court. I'm not, I'm not, I'm not trying to. So my point was to try to go back to the purpose of the false claims act. You were talking about the purpose of the circle earlier. Is it the certification required? No, Your Honor. A certification is absolutely not required. And this court's decision in Harrison makes that clear. And that's sort of the fundamental first step error that his court said you need to have an objectively false statement on the face of the claim. That is just patently not true under the Harrison decision where the, I mean, it rejected a district court decision that said that very thing. But if you do a certification is required, you have the law wrong. This isn't if. Is there any certification in this case? Well, we think that cert, I don't know whether you're using certification as a term of art. We think that there is an expressly false statement in the invoices themselves. That is the guard. We're giving you guards. I know. And we think that in this context, you weren't giving us guards. Not least guards that did what we think. If there any certification in the invoice requesting payment. That is that is in the invoice requesting payment. Again, that's it. And the invoice says the guards can do what? No, no, no, they don't say expressly that they say we're giving you guards. And we think they say that in the invoice. They do. But a point is that that's not necessary. Often you just say, pay me now. And that if you know that what you're asking for payment for, if you know, that's an important part. That it doesn't meet the- Do you want to take time off of your report? I would probably prefer to go to the end. Okay, thank you very much. Thank you. You reserved some time. May I feel? Morning, Your Honor May, please the court. Train Mayfield for the- Relator Omar Bader. The government and its brief of address, I think it linked the requirements of B-1 and B-2. Excuse me, A-1 and A-2. The law that we've talked about, the district court, as I recall, seems to at least last on to the fact that we've come- Where did the definition for the fact that they had to be qualified in a certain way come from? In the task order, 11, Your Honor, it specifically says they have to get 23 out of 40. A person who can't do that is not a guard, simply a person. And that comes on one of the documents. That document a part of the record? It's referenced explicitly in both the government's complaint and the Relators complaint Your Honor. Is the document a part of the record? It is at this point because it was submitted by TCI and Rebuttal. But under normal pleading- Not before the district court. Oh, it certainly was. It was before the district court. And as you know, under the pleading rules, any document is expressly referenced in the complaint is considered part of it for dismissal purposes. So if you go to your point, Your Honor, these were not guards. These were just simply people. There was not a- in fact, we allege in the government alleges that not a single guard ever showed up at outside. Not one. They just simply brought in you condoms. The contract was not for you, condoms. It was not for people who could pick up a rifle. It was not for people who should up for work every day. It was for people who could get 23 out of 40 just as any- You had to get 23 out of 40 if you had no wouldn't it? For anyone with the other public. Would that be sufficient? Yes. And that did not happen here, Your Honor. Not once. There's nothing to do with you, condoms or anybody else. It's just that what? I don't want to get hung up in the definition of guard. But the truth is, that's what I asked the first question- The first question was there is an expressed condition about marksmanship. I was told yes. You say yes. Yes. And that wasn't met. Correct. Does it matter if you call somebody a guard or not? Well, it does matter because if you're asking for payment for guards as opposed to mowing the lawn and you don't get paid. Or rather you do pay for a guard and you didn't get a guard then you've been lied to. And they were asking for payment for mowing the grass in this case. No. They're apparently alleging that they were getting payment for wheeled- Langing that they asked to be paid for guards when they provided them. They're not. They have anything to do other than those people standing there performing the duty of security service to this contract. They did do with anything else. No. In the same manner that if I have a Medicaid contract who for a doctor to provide a service and instead a nurse provides a service, that would be an express lie. Or his claims particular enough as to all their bases and other circumstances. They certainly are and that's what I was going to get to. Under this court's decision in Glenn versus EDO Corporation just last year, the court specifically said there is no requirement of firsthand knowledge. There's nothing in Rule 9B that requires that. There's nothing in the false claims act that requires that. I didn't ask you that. I asked about particularity. They do have particularity on it. Based on his experience at LASAD, he knows that all of these guards, every single one of them, was not qualified to be a guard. They weren't guards. They were simply people. And he knows that they were shipped off to other bases and they still weren't qualified. And as the contract or rather as the complaint makes clear, How would he know as they were qualified or not when they got to the other bases? Because that's if you read the complaint, your honor expressly says that's the qualification for the contract. And that's why on the final month, they were being reupt. They were filling out these cards falsely so that they could go to the other bases. And then we're getting to a question of proof. How does he know that? Well, he knows because he talks to his fellow guards who ended up being shipped to those the American guards. Then it's supervisors. He speaks something, but you don't have to alleged that at the pleading stage just enough that he says that he knows it. These people can't do the job here and then out of TCI falsifies the records precisely so they can go somewhere else. And meet the same kind of contract. And in Glenn, It doesn't know that he had a first of prior activities that would be the fact of the future. Oh, no, with respect to actually to the very last set on the range, they were gone and were put out there precisely so that they could be qualified for subsequent contracts. Because at that point, the Alliside contract had been canceled. They've been given to another contractor. And so at that time, it was expressly known by all of the Americans that these guards were being falsely qualified for another duty station in Iraq. Mr. Bader then learned from his American colleagues that they did show it. The exact same people still unable to shoot with the false qualifications in the jacket. That was the very reason it was done. And as a support court sending Glenn, there's no requirement that you experience any of this firsthand. Think about that what would mean for the False Claims Act if we required that a related personally experienced every false to the deal ledges. Well, no one could ever bring a false claim to act unless it was in the very smallest possible company. You could, a related from here things. First hand, second hand, third hand, doesn't matter. What matters is that he brings to the court a set of allegations that plausibly raise the inference that a fraud has occurred and that the United States has paid for that fraud. Thank you very much. Thank you. Miss Lee. Thank you, Your Honor. I am Tarlie for a pelly triple candy. We have to begin with the premise that the False Claims Act is a fraud best you. This is a fraud case and fraud has to be pled with particularity. To plead fraud with particularity, case law has held you need the time of the misrepresentation, the place of the misrepresentation, and the contents of the misrepresentation, as well as the identity of the person making the misrepresentation, and what was gained thereby. Let me ask you a preliminary question. We didn't talk about earlier and that is the district court here dismissed this matter without prejudice. That seems the indicate typically when you do that, you can come back to this court. You should come back, you don't come here before that happens. Is this a final judgment? It is because the... Not just because you agree, but that doesn't make a difference. You agree, but... In this case, the government has elected to stand on their complaint. They have suggested by appealing and in their supplemental briefs and response to your question that they are going to stand on the facts as they are and go forward. You can conclude they couldn't amend or that they don't want to amend, but the complaint is the complaint now, and we are here with what is now deemed final for purposes of being able to judge the appeal. It means they are not going to go back and change their facts. That might be because they don't have them, and they can't plead it with particularity, or it might be because they want to take this fact pattern and see if they can expand the law. For our purposes, it means we are here, and we can't be sent back, and we can't start over again at the beginning and do all this again if they amend later. Where we are now is here to decide with the Court's gatekeeper function if this is good enough to get through. If there is a certification in support of this demand for payment, would you lose? The court below ruled that there was not sufficiently alleged, a certification in support of the demand for payment under the contract. If there were a certification, would the district court be wrong and you would lose on this argument? I want to make sure I am understanding the question correctly. You mean if the facts were completely different? No, exactly. If we were to find there is a certification, let's say for instance, let me change one fact. I will forgive you if I have a medical. If only that in the way it says we hear by certify that we admit every obligation under the contract, would that make it a different case? It would make it a different case, Your Honor. And so it would make a difference to the outcome of the case. It would make a difference to the outcome of the analysis of implied certification, express certification. I would suggest that however that analysis comes out, you would still make it particular. It would make it different to the outcome of the case. In other words, the district court would be wrong and this case could continue wrong. I don't think it would, Your Honor. It wouldn't change the outcome for the reason that I am getting to, which has to do with 9B. 9B requires particular reason. Even the side 9B. Even the side 9B, I just want to focus on this issue. If there was an express certification on that invoice, you with me? I hear you, Your Honor. That we have made every condition. Would you be wrong in your argument? You would lose your argument. I don't think we would, Your Honor. And the reason is for the question that you posed earlier. Doesn't the fourth element of a false claim that case requires some causation of payout to the government? I think they are missing that as well. Oh, the certification, that would be the certification in the invoice. We certified to you, government. We met every condition, pay us. And then the government would say, we are paying you based on that express certification. You would lose, wouldn't you? You would, Your Honor. But you don't have anything remotely like that. No, no, no, no. You have to answer that question first, so then we'll walk through it. But I would say this is not an express certification. But in issue that, I said, if the contract said that, if the invoice said, if the invoice said, this is the same question I'm going to ask you, maybe I'm not being clear enough, if the invoice you gave said at the box, said this, by submitting this bill invoice, we certified, we've met every condition of the contract, and you signed it. That would be a statement which was the Port of False claim at correct. I think it might be your honor, but what I'm trying to point out is that where express condition cases have been upheld, it's been for a statute or regulation. I don't know of one where they looked at nothing other than the contract claims. Plucked one. So in other words, you don't think that would make a false claims at case if the person knowingly misrepresented a material fact. You don't think that that would make a certification for a false claim at the court. I think you could do that, Your Honor. I'll tell you that I think you could make that the law, but what I'm saying is that it's not the law now. I don't think it is, Your Honor. I think when you look at an express certification case, they're going back to a regulation or a statute or some external obligation. They're looking at OCI obligations that trigger this affirmative obligation. So you would think that under the law has it been decided that way? Or you just say it's an open question, my hypothetical. I think the hypothetical you pose would be a case of first impression, because this is the first time the government's trying to do this, but I'm aware of which is... My first impression then, I'm asking this question, and then I'll let everybody else pass. I think I can answer it, Your Honor. Well, you had an answer to it, yeah. Well... It would be how I answer it, yes, for you. It doesn't, Your Honor. Because this is, yeah, we can move on. It's just that this is, I don't think you should do that. But you're not moving on. Is, would that be a statement or conduct which calls the government to pay out a claim? Yes, or not? Yes, they would. They would have the causation, it would be the claim. But you would have to then be deciding that contractual obligations on their own can create expressed certification. Does the certification have to be expressed, may it be implied? In this circuit, we haven't recognized implied certification. I think here... We denied that they just... You have called into question, Your Honor. The circuit has said it's questionable. I would suggest you that... Well, it's first impression again in your mind. Well, it's not. I think the circuit court has had opportunities to opine on implied certification before. Well, it would be first impression as to whether we have to decide it. Well, I mean, so far it looks to me like you had... I think you know I'll give that that out. I'm not, I'm not your, I'm just saying. You've had the opportunity to decide on implied certification before. It's not the first time that Pellies have argued it with you. The issue of reporting on another way out is... I think you can. And I think it's in 9B. I think it's really important that we focus on the fact that there's no... Is there an expression of this contract? Is there an expression of the contract that the guards who are being paid for under this contract have to be in law enforcement ship shooting... There it is, Your Honor. It is one of 20 and the only person to be prepared... Did the guards in this case... I guess this allegation... The allegation is that they did not. It's one of 20 contractor responses. So we take that. Do you think... So we take that as a fact they didn't meet that requirement. I think you do in the allegations and the complaint. Well, that's where we are right now. Okay. Do you argue on materiality as to that? No, what I'm trying to get to your honor is that they don't have the particularity for the fraud. They don't have the heurre of the fraud. False is false when it's uttered. Fraud is fraud when it's heard. And the government is coming to you insane. We complete fraud with particularity without telling you who heard what went. Could you leave the particularity argument aside for a minute? You can get back to that and you are forced in that. But I'm asking you leave that aside for a second. Is there a false claim act without the particularity? I mean, if you take that off the table, is there a false claim act? As long as we're on the facts of the case and not the hypothetical where there's a kind of certification. On the facts of this case, they also fail in 12v6. They don't have the fourth element. What they have focused on in materiality is just the third element. You know what? I ask you about materiality. Not what they focused on. I ask you is that material. That's what I ask you. In front of us right now is the fate of qualify. Do you argue the materiality of that? I'm not. I'm not. That's what I ask you. What else do you argue then other than the statement? Leaving aside particularity, is there anything else about a false claims case that you argue with as a case is in front of us right now? There is wrong. If you want to focus on materiality from our argument. You just said you don't argue about that. Well, I think there's an important piece that's been missed. You just said you don't argue. You're an argument about that. I do have one small point that I think will illuminate this a lot and is worth just focusing on. The government got up and argued to you that all over their complaint they say the contracting officers represented it have the duty to look at these records. That's in the complaint at paragraph 25 and 28 and it's referred to 17 times in the arguments. The paragraph they refer to is 7.4 of the task order. There's no such paragraph. Paragraph 7 of the task order which is the contract says the contracting officer is going to go look at three things. 7.1, weapons list, 7.2, ammo list, 7.3, monthly fuel use requirement that the guards be able to be able to shoot properly. Is that a material requirement of this contract? I can make an argument that it's not. If you look at... It can be and we still prevail. But... I didn't ask you that. I don't understand. You don't understand my question or I don't understand your answer. I said... Is that material? Is your argument that the guards can shoot properly? Is your argument that is or is not material to this contract? I think that this contract lays forth the things that... It is just answer it. It is material or is not material. Just tell me that. I think the argument that I want to make to you is not material or is it not? No, Your Honor, may I explain why? No, no, I think that you challenge that. And yours I want to challenge it because what they're focusing on is if then he would have sentence structure that puts the contracting officer with a duty to go look. They tell you to use the all may case to presume that he actually went and looked. But they're filling in a gap they can't show you in the contract because 7.4 is not even there. 7.4 in the task order is what they say they're relying on for the contracting officer's representative is going to go look at these records. They can't tell you he did, they can't tell you when, they can't tell you what they said. But they want you to believe that he did because they say it's at 7.4. I don't know about any review of that. I just asked you to use this material to the contract that the guards would be able to shoot properly. I didn't ask you about who has a requirement to review. I'm not asking any of that. I'm just saying do you think the fact that the guards have to be qualified to shoot is that material to this provision of guards contract? Here's why I'm saying no, Your Honor. Okay, you see? Because the contract lays out three things and only three things that the contracting officer's representative has as deliverables that he will inspect. 7.4 is not on the list. It might have been once because they're mistiding it from somewhere. But do you think that if under this contract, I'm just asking. You provide guards who cannot shoot, cannot shoot, because you have met the contract. Here, the contract gives the contracting officer three things to look at. That's what you should look to to decide materiality. It would be dangerous to start deciding because one characteristic out of 20, I think searching cars is pretty important. I think badging is pretty important. I've been through these checkpoints. Those are a lot more important than can he shoot on a target when in the performance of those duties. Well, I may not be. We won't stop at the check point. I hear you, Your Honor, but these are contract cases where the government doesn't want to... I don't want to believe anymore. You think that the ability to shoot straight, although it's an express provision requirement. It's just not material. That's fine. That's your argument. So you win on that or you win on materiality? Well, I think it's important if you're going to decide on materiality that you go to what the contract says about it to decide that is my point. My point is you argue you win on materiality. What I would like to argue is that we win on the absence of causation. I didn't say that. Don't you argue you win on materiality? I think we could as well, but it's an alternate not anywhere near my primary argument. I didn't suggest that it was. I'm going through the factors of trying to see if there's any agreement is what I was doing. And if they can get through materiality, which I don't think they can be... I got it. I know that. I guarantee we know you think they can't get through that. But then I think they have to show that there was some claim that came to be paid. And what they're trying to do is give you scenarios two alternate ones where you can find false claims at liability without anything but a contractual violation that they say was knowing. That's what we're trying to do. What else do you think is required? I think they have to attach it in some way to a submission. I think that's flat better. What about the invoice? That's why I was getting too undisturbed. There's nothing false in the invoice, you know. There's nothing in a certification in the invoice. Is there a certification in the invoice? There is not. And there's not... I know if you say there's nothing in the certification. Oh, there is no... I just missed it. There's not a certification in the invoice. There's not an express. Is the submission of an invoice an implicit certification that we should get paid because we have fulfilled the contract? That's not what case law that have recognized implicit certification have held it to be. In fact, that's been discussed by this sort of engulfing. Do you think had you attached to your invoice a comment that the guards were asking you to pay for here cannot shoot? Do you think you would have been paid? No, I don't. Why is it that? Why do you think that? That's so. Because that's the submission. And what you're missing in this case... No, no, no, no. It wouldn't be a false statement. It would be a truthful statement. Here's our bill. And we've attached to a statement that the guards you're paying for a government cannot shoot. That's a true statement. That's not a false statement. You think you would have been paid? Your Honor, I wouldn't have been paid because that would be a breach of contract case. They would have issued a pure notice and they would have gone through all the mechanisms that already exist to make sure we weren't paid. I sure would. You think that... You think that at least that argues for a breach of contract. It does. You just think that that's not elevated to a false claim. I think there's a lot of space between contract violation that you have alleged here. And what you ought to have if you want to bring a false claim. This Court has recognized that in Canada. Well, I mean, we're engaging in, of course, the legal argument here, and we have to stick with in terms of how this is put. The bottom line, when we look at the facts of this case, do you maintain that it's not fraudulent when you submit claim for payment? You know the government wouldn't pay it if they knew these guards were not qualified. I'm saying this claim's not sufficient, Alex. I'm saying that in terms of the allegations of it, but I'm talking about the point here, that's under the facts of it. I think it's... You submit a claim for payment. And you know, when you submit that claim for payment, your guards aren't qualified. And you know the government won't pay it. And you know that because you've falsified records. You may... you had people to come up and say, oh, put down that he's qualified. I mean, there's a reason for... so you know they can't. And we have that set of facts. And we're at the pleading stage of this situation. And yet we're dealing with a very serious situation. This is cutting into the chase on this. And I don't know if we're going to go to some plot of a matter of not in terms of certification. But we are talking about protecting American soldiers. And you got someone over there putting someone up there protecting them. Who can't even holler a hole or rifle. Now that may be something we can sit in here and argue in this court back and forth for how we're going to go on this thing. But the bottom line is we're at a pleading stage. I'm not saying we go beyond that, we can't get some more facts. And to get tied up on legalistic terms about express certification, whether or not we're going to recognize an implied one, or whether the fact remains, those basic facts do exist, don't they? You did know that these guards were to be qualified. You didn't know that. You did know that you hired people who were absolutely not qualified. Absolutely could not. Had no qualification whatsoever. They were put in a position of God in an American base where their soldiers up there. There's a reason they're there. They took money. They submitted payments to get money for it continuously. And to get those payments, they falsified records. No question about it, right? In fact, the latest is they had him to come and put his name down to these people qualified. Any of that wrong? I just want to point you before you put something. One little spot. Anything wrong with it? One little spot. What is it? The part where you said they knew somebody was coming to inspect. No, no. In fact. Or to review where you just said that they think... Not about my review, I'm not talking about the reality. The reality that you put God's own that place of that, they were absolutely unqualified. And the reality that you've got someone to represent to the government or to whomever. Whether or not it's an inspector or whatever, to put on something that these people are okay. I want to concede that this is the fact pattern you describe as a fraudulent scheme. There are lots of cases with appalling fraudulent schemes to hold somebody responsible here. Well, you could dismissal without prejudice. So I assume that's... You could become up. So what do you tell them? Didn't they do something? Is it they did not put the right document to show that the contract required these guards to be qualified? And is that the problem? What you have to have is something more in the false claims act. You can have a fraudulent scheme that is alleged to be a criminal. You've got to figure out what that is. Because there's no way in the world we can't, as a court or anybody in this country, allow a contract to do what these facts indicate here. Because that's a problem. And we cannot write an opinion that says, okay, everything that's here, you can have people come up and put down wrong, tight things. You can get the wrong guards to put on a base for millions of dollars. And then submit an invoice to get hundreds of thousands of dollars for people who absolutely have no qualifications. Now, I'm just dealing with the basic facts of it. I understand you're dealing with your case and we're going to side this on a legal basis. But I'm telling you why this case presents an interesting and horrible facts scenario. You're on it, though. Because you are representing here, judge, make this as legal as possible. Require. There's a certification. Even if it is one, that's not going to be enough. And when we show as a result of this of these facts that we did something wrong here, and we put those guards up there, and we took money for them, and we knew the government cared about it, because we went and got someone to sign over here to falsify it. There's some sense of outrage that comes from this law not worth spending. The outrage can go to the fraudulent scheme. It can go to cure notices. It can go to other types of ways you can remedy that scheme. Those, as you described them, horrifying facts are why this... You're saying something is wrong here, but the government has it filed the right judgment. They haven't filed a false claims act allegation. They haven't... They are something else they could file. I don't... According to them, they can't. So nothing can get filed. No, you're on it. They can do a cure notice. They can do a breach of contract claim. They can proceed in many other types of forms that this is where I'm going. There is a remedy. They can sue and get the money back if they think the contract was violated. That's not what they did. They stop protecting soldiers if people overseas. I don't think money is the issue here. Well, you're on her. You're assuming that every single allegation in this complaint is true? I'm assuming if you can do this someone else can. It's a contract violation they've alleged. Understand. I'm assuming if you've done this, this is a blueprint for how to go somewhere, grab someone off the street. It's not a question of whether or not they're regarding them because they're certainly your guns and soldiers who can qualify for anything. They just went and grabbed them someone and stuck them up there with rifles in their hands. Because it's been Americans, they go to do the same thing. But the question is, you know why you have this $9 million contract. And you know this otherwise let them freeze to fan the base. Which I quite frankly don't understand what else I've done. But I guess they have a few national reasons. You're on her. We're here because of that reaction to these facts. Because if you ever were going to look at a contract violation that is on its face, there's legally nothing more than one element out of 20 contract violations. Just legally that's all there is. And they're going to ask you at the for circuit to make a new law about the false claims act to fit it. You know what? Bring a set of bad facts up here. You know what bad facts are. I do and I'm urging you not to go there. Bad facts up this case. You said you have some first impression issues here and maybe we need to take it those first. Take a look at those first impression issues. But you in front of a judge you didn't find the facts bad enough. So just because the facts are bad that mean that you're going to lose is an application of law. Because if you do this. And what do you think is the one single biggest flaw in the government's assertion that this is false claims. What is the one thing? They brought a false claims act case without a false claim in it. Your honor. They could have brought a different kind of case. And it's okay. Or you get just but that's just sort of captions. What? What? Why is this not a false claim? Tell me why it's not the end voice. I'm focusing on the end voice. Why is that not a false claim? Tell me why that's not. Because it doesn't include a false hit. You cannot say that guards are not guards. I mean as you didn't know. When he wasn't. Or was he so reaching one thing isn't enough. It can't be your honor. If it was you'd be in a worthless services context and were clearly not there. There are 19 of 20 that aren't even alleged they failed that. So you don't hinge your argument then that there is no implied certification in the end voice. You don't argue that point. I don't think there is. I thought you were going to say there was no certification at all. No, there's no express certification. There's no implied certification. There's no precondition of the statement. The biggest argument I actually biggest point is to breach one out of 23 things. It doesn't make it a false claim. That and this, your honor. I actually, I just, okay, I'm giving you another 15 seconds to tell me. Because I'm going to make him answer to it. There's your chance to make him answer to your argument. What is the single biggest flaw in their false claims act case? I think it's that a false statement is false when uttered and a fraud is an allegation when it's heard. And they can't allege for a you time place and content of the hearing here. And they're telling you we don't even have to try to please just wave that off. Okay, thank you very much. Thank you. Mrs. Garber, you've heard what they see is flowing you okay? I understand your honor. And the important positions. Yeah. Before you get started. If is the government's theory, if the contractor submits their claim for payment. And they know that any of the bullet items, 20 some bullet items on J89 have not been met. Is that a false claim or breach contract? That's a false claim, Your Honor. If they know that they haven't satisfied those things, which are conditions of payment. Yes, they're conditions of payment of the contract. And so yes. And that that any provision that's in that. Whatever they call it statement of work. I haven't I haven't focused on all the different things, but they're actually it's all on one page J99 statement or other provisions. I understand contract. Is it only the ones that are on sex should under section five? I'm not sure whether there aren't other conditions. The notion that like just because there are a lot of conditions. Is it different, Jay, between what's a breach contract and what's a false claim? So let's say if we looked at section 12, unauthorized items, contractor has to have. Where section 12, I'm sorry. Section 12 of that page 102. And they don't have a letter of authorization. And they don't know. And the contractor knows they don't have a letter of authorization for the guards to have cameras on the base. Is that breach contract or false claim? I don't think the distinction between breach of contract and false claims, the relevant distinction. I think the question is you're asking whether it is a condition of payment, whether the government could withhold payment if that has been breached. And the distinction between contract breach, mere contract breach, which they keep sort of using that terminology. And false claims act violation is when you know and only do it. And you know that the government cares about it. And the part of the reason why we're focusing on the falsified marksmanship, scorecards is that's one indication that they know. No, no, no, no. Why wouldn't the government care about every provision in the con. Well, government does, and that's why I answered the question at the beginning. Yes, you violate. No, there's things between a breach contract and false claims in your opinion. I can't answer it that way because there is. The distinction, but the distinction you're on. Why is he a jurisdiction between breach of contract and false claims? Yes, you're on. And the distinction is what is knowledge, is knowledge of what you're doing and knowledge of the fact that it matters to the government. In other words, he matters to the government. Is that materiality? Yes, that's a materiality. That's the element of materiality. It would have provisions in the contract that aren't material. I think you're on that we have to recognize that there is a... Yes, or no. Yes, I do believe that's possible, Your Honor. I'm sorry? I heard you say that. And that's why I'm saying it. Apparently you thought so because I had trouble getting out of it. Well, maybe I'm just moving slowly today. But the point is when you know that the government cares about it. You don't lie about it. I didn't put it this way. You don't lie about things. You know the government doesn't care about it. There were some innocuous things. They might lie about it. You might. They can't do this, not to do this. They can't lie about it. You might lie about something. That's not material because you want one of those government defense contractors awards. Who knows about all that stuff? But do you think the distinction between a breach of contract and a false claim when you ask for payment under the contract? You want to talk about two different provisions of the contract? I think you think it's materiality. No, I think it's knowledge, Your Honor. You know that you're violating the contract. What about you know that you haven't got the alternative? You know that. You know that. Yes, that would be a false claim violation. Yes, Your Honor. I am agreeing with that. I'm sorry if I'm being unclear. So anytime you breach the contract. You're a new vision. Yes, right. And you could. And the government could withhold payment because of that. And that's because it's an express contract. Well, I can't government withhold payment. Every provision of a contract. And that's the only place where I equivocate it because I do think that. And this is part of contract law that there are provisions that are so insignificant that you would not say go to the very essence of what the government contracted for. So we are so far away from that here. No question it is significant that God's in quality. Absolutely, Your Honor. That's what I'm trying to say. It's not like our United States soldiers who are overfleeze on bases. And the fact that you know that. And you've got to believe that's important to the government. There might be some things in that contract that are not significant. Yes. What uniforms they wear. Yes. How are time they get up in the morning. But the fact that they're very bases for them being there. To stand out with a gun. And to defend them from people who have come in. If that's not there and you go and ask for money for people who are doing this. That's got to be material. Yes, Your Honor. I don't think anybody is quite a fool for these other ones. I agree, Your Honor. And what I would add to that is that if you could. It's not a question of what is material on the top end. It's the question we were probably with you. What is the distinction from the government between a provision that clearly is material. And one that isn't. Right. Because you have to write the case and you have to set the law. You've been doing very little to help us understand. Your argument is anything in that contract is presumptively false. No, no, no, you're wrong. The statute defines materiality. And we're relying on the statute. We're relying on the question. I ask you about materiality. That's what I ask you about. I have questions. I'm trying to find in your materiality. Yes. But then the question that I think I maybe got sidetracked on was when you asked the distinction between contract and a false claim. And the question there is knowledge there. That's what distinguishes those two things. Can I just say one more thing? Knowledge of a material matter or knowledge of any matter? Knowledge that you're violating or contractual requirement. And you're nonetheless saying government pay me even though you know that you shouldn't be eligible for payment. Okay, let me ask one more time. Do you think the key is your knowledge or your knowledge of a material breach? It is your knowledge. Okay. And can I just say one more thing? Sure, I'll give you a second. Ultimately, their side boils down to if you're clever enough to avoid seeing anything false on the face of the invoice. Then you can avoid false claims at liability. That is not the law. There are numerous cases including this course decision in Harrison. Thank you. Thank you very much. Appreciate the argument from all of us. Step down, great counsel. And go to the last argument for the day