Legal Case Summary

Good afternoon, Your Honours. I please the court. I would like to reserve five minutes for a rebuttal. Right, that's your honor. Your Honours, I'm Brian McCormick. I am pleased and privileged to represent the appellant relator, Dr. Tom Zizek, today who was here in the courtroom. In this case, the question before the court is whether or not the public disclosure bar of the False Claims Act applies and whether or not Dr. Zizek was an original source. Your Honours, Dr. Zizek filed this complaint in December 2009, alleging violations by two defendants who were qualified independent contractors or Quicks, Q2A administrators and River Trust. They were part of the Medicare appeals process for the payment of durable medical equipment. The claim is simple. As Quicks, the defendants had a duty and were required to perform under contract with the government certain medical investigations and reviews. As part of their duties as a federal contractor in the Medicare appeals process and they did not perform these reviews as part of the scheme to push through the claims and appeals. One of the problems we have here is, now this was thrown out on a motion to dismiss for failure for lack of jurisdiction. The complaint does not have a lot of information as to exactly what Mr. Zizek, Dr. Zizek's role was in, in an effort to do so. There are many of this. It says he has first hand knowledge because he was involved but there's not a whole lot from which we can derive, you know, sensible conclusion, at least as to the second aspect of the matter that is direct and independent, you know, connection that would give him and out even if they're public disclosure. Did you seek to amend in the district court? We sought to amend at the time of the argument and we never filed a natural motion to amend. We requested as part of our response to the motion to dismiss and I asked for it at the time of oral argument. We felt like the complaint would have survived a 9B motion if Judge Fyre had gotten that far but we never resolved. We never got to that stage because she dismissed the measure

. I really can't tell was he part and parcel of these procedures where the, you call them kicks, quicks would, you know, what's this procedure? The quicks would consult with bio and care and say, you know, I need to review some more records or was this a totally distinct review process whereby there was no interaction. So he wasn't, I mean, he said he has first hand knowledge but could you have shown that he actually interacted with these people while they were doing this? He did not, you're on it. When doctors is it would have become involved was the way this process works, the quicks are the third step and I know this isn't part of the record but that's my problem. Well, you're on I think I believe that the complaint does explain the five step process and where doctors is it became involved and what I believe doctors as it did was there were two places where he became involved and it says it in paragraphs. I believe 96 and 114 where in the appeals process built before and after the quick review, he became involved as the president CEO by on a care who had had these claims assigned to them the medical provider for the by on a care piece of equipment. I know that but he says he has first hand knowledge. How, what, how was he involved? Well, when the claim was assigned, he says first hand knowledge acquired through the appeals process that the records forwarded concerning the Niles lacked evidence of the required medical review. Was he there in that process? Was he involved in that process? He wasn't involved in that process on behalf of the by on a care who had, who was the medical provider had the claims assigned to them from the provider. So the first point doctors is it would review the claim to decide whether it should even be appealed up to the quick. He would then look at it and in fact, he did not even, he in that review did not appeal every single claim up to the quick. But once he appealed it, it was the process wasn't something he was privy to, was it? Yes, he was involved in the quick, well, he was not involved in the quick process after the quick would have denied the claim are not given enough money or whatever they did. If it was them being appealed to the ALJ again, Dr. Quick or Dr. Cisic would become involved. He would review the file that the quick, the two defendants would have presented to the would have gone up to the ALJ and then he would have helped the by on a care format their claim for the ALJ or. That's from the cormin, but your problem is as the district court found and as I'm struggling with here is whether it's the complaint that we're, we have in front of us or even if you had been granted leave to amend your complaint. How do you get by the public disclosure bar? I mean, that's your hurdle. I mean, that's where the superior granted the jurisdictional dismissal. How do you get by that? Well, you're on two steps of the public disclosure bar. Your honors asked for a supplemental pleading on the ALJ and how the process works. We believe that the process was not publicly disclosed as a normal civil litigation. There's very limited access to these hearings. There's very limited access to the way that you would have seen this public, this, this claim that Dr. Cisic eventually discovered learned about investigated that no one else in this process ever saw or discovered

. But before that, you have the aligning litigation and the discovery there that this review process was not being followed and you only have one quick every year. So it's pretty easy to figure out who who's falling down on this review process. Now, isn't that enough to have been a public disclosure that the separate and apart from whether this was public or private? Your Honor, I think the distinction in the ALMI case is, first of all, that the citations that the defendants rely on, most of which are after we filed our complaint. But the only one before the complaint was based on information that Dr. Cisic had already presented. It was, he was the original source for that information in both cases, which would get us to, even if it wasn't public disclosure, Dr. Cisic would be the source. But I think the ALMI disclosure, if you want to call out that, or the information that came out in the ALMI case, didn't bring in the elements of fraud. It only brought in the fact that there was something missing and it became intertwined with the number of other things that was complained about in the ALMI case. Is it your assertion that they present, they being, the quits, filling for payment by federal government, and they're not doing what they're supposed to do? What you've done, right? I mean, now he says the allegation is being made that they're not doing position reviews. If that's in the ALMI litigation, why isn't that disclosing effectively everything that Mr. Cisic is disclosing, which is, hey, they're not doing position reviews? Well, I think there's two things, Your Honor. I think the first thing is that the statements in the ALMI litigation were intertwined or mixed in with a number of different other statements. That was not the only thing that they brought forward. I think the other thing is there's no inference of fraud there. It was just, they didn't do it. It was only Dr. Cisic who was able to put together that. But how is there not any, if I understand that the done leave the algebra formula, x plus y equals z, and our own precedent in Atkinson, if the prior public disclosure reveals either x plus y, that is the misrepresented facts or z, the influence of fraud, either one of those things, x plus y or z, these probably disclosed that's enough for public disclosure. From that, right? Well, I would think Your Honor, if you look at done leave, I think Judge Roth takes it another step. I think she says that the language from the False Claims Act, the public disclosed allegations or transactions need something more. Just, you need, I think besides information, let me read you from Atkinson. If either z, fraud, or both x misrepresented facts and y, true facts are disclosed by a way of a listed source, then a realtor is barred from bringing suit unless these are original sources. So that sounds to me pretty straightforward

. If you've got x plus y, misrepresented facts plus true facts, or z, then you've got disclosure. So what is missing from Almy? Almy sounds like people saying, hey, they're not doing position reviews. They're supposed to be doing position reviews. Why isn't that x plus y? Or maybe I've just got what Almy says wrong. Well, I think what Almy says is the x plus y you're putting together is simple statements is not that simple. I think the Almy litigation involved so many other issues and so many hundreds of bionic hair claims that the point of x plus y is not as close as x plus y. So clear as it would be to create a public disclosure in that litigation. What? I'm just going to quote this to you from Almy. This is from the district courts opinion. Plain if it gets no traction, this is on page 333, I think of the district courts opinion. So for that, I have some second. I think it's no traction with his claim that the quicks failed to incorporate the medical review required under the Medicare regulations. I'm sure there's a lot of other stuff being said in Almy, but that doesn't that indicate that in the Almy litigation, there was an assertion that there's supposed to be medical review and it's not happening. I they made that assertion was made in Almy. I don't think though it was clear enough from the rest of the Almy litigation to have given another party that was looking at this, a the ability to figure out that there was a fraud or a scheme behind it to do that. Let's assume that and let's give you. You know, you reserve five minutes for a reputal and just go into one aspect now. I would assume you would say well, even if Almy was a public disclosure, you're assuming you're contending he is a direct and independent source. I am your honor. I believe doctors is is an original source. I mean, original source. Judge Shapiro said that there's an affidavit. And so really that is the affidavit of the person who was with the quick is the source of information for doctors is it? Well, and first of all, the affidavit only appeals only applies to the one defendant if you if you were to believe Judge Shapiro, which would have left the other quick in the part in the case. Because the affidavit by Wayne Ben Hallam was as an employee of only one of the quicks, but doctors is it had already developed and come up with the and discovered this through his review and analysis of all the claims from both the quicks

. Mr. Ben Hallam's affidavit, which came to Dr. Susik after he had discovered this only confirmed what he already knew and confirmed that there was a widespread action or a scheme or plan by the companies not to do the quick reviews that they were supposed to be doing. Can I ask as a factual matter, how did the band Halem have to date it from these? Is that something that Dr. Susik did he found? And, and he worked with some other in working with and in doing his review of these claims before they reached before they reached the quick and after they came through the quick before the ALJ, doctors is a cat in the norms amount of contact with employees of both companies. Mr. Ben Hallam left the company and contacted Dr. Susik and the attorneys for Bionic care after the fact and told them exactly what doctors is. Mr. Ben Hallam, as I could have said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said

. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said

. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. Mr. Ben Hallam, what he already knew and said. And as Judge Jordan pointed out in his question. In the motion for summary judgment. In that case. The bankruptcy trustee. It's at paragraph 66 as her statement of material facts. It said. Quote, although the Medicare regulations required physician review. At the quick for claims. For services or items provided by the physician. That's the ex element of Dr. Zizek's complaint. She goes on to say

. Only two of the claims in the court. In one of the decisions. Shall we need an issue of physician review? And only a small number in the 535 decision. Decision have indedction of nurse review. None of the claims in the other cases have any evidence of nurse or physician review. That's the why element of Dr. Zizek's complaint. Two questions for you on that. The score. Mr. Shockley, if I might first is. That court said. Given that that's not enough to raise any inference of fraud. So why would it be enough. To establish a public disclosure that should be with people on notice that there's fraud. Because as your honor pointed out. And done leavey. And in atkinson. And again in parentage. And judge Randell's opinion what this court has said is either x and y. Or Z. You don't have to show both of those either the transactions in the language of the statute. Which is x and y. Or allegations

. Which is Z. Or sufficient to raise the jurisdictional bar. What now he has is x plus y. So. Which leads to my second question that is. Is x plus y there the court seem to say. There's nothing that requires. Quick to disclose that they've done physician review. Therefore the fact that they don't disclose that they've done physician review. Does it mean. It's not significant. It's not legally significant. In other words I took the court to be saying. The bankruptcy trustee didn't say review isn't happening. Only that it's not disclosed that review is happening. Am I right about what the court said if I am? Is that a meaningful legal consequences? You are right. And I don't believe it has meaningful legal consequences in this case. What the court said is. You look through the files. You didn't see evidence of review. I don't see anything that requires them to have evidence of the review as opposed to doing it. But what the trustee said in her motion. Was exactly what Dr. Zizek says here

. They're required to do it. And they're not doing it. That's the x plus y. So. In effect the court was was addressing a separate question. And saying even if what the trustee says is true. It doesn't affect our judicial review under the APA. But that allegation, the transactions from section 66. The bankruptcy trustee say they're not doing it. The bankruptcy trustee says. I certainly read it as saying none of the claims have any evidence of nurse or physician review. In fact the quick that originally reviewed the claims subjected none of the claims to physician or nurse review. I think if you read paragraph 66 of the statement of material facts October 30th of 2009. And compare that with the operative allegations and Mr. Zizek's doctor Zizek's complaint filed in December of that year. That they match up. And that's the x plus y elements. Assuming you have that bar. Why do we not have the exception here. And why was Judge Shapiro wrong to jump to the conclusion that unless Zizek had all the information that Van Halen had, he wasn't an original source. You're right. I think there are three reasons that doctors is it is not an original source. His knowledge is not direct, which is required by the statute. Well he says in his complaint that he has first hand knowledge

. He says he has first hand knowledge from looking at the a lj hearing. No, he doesn't say that. He says from the appeals and according to your colleague, he has acquired first hand knowledge through the appeals process of claims pertaining that were arbitrarily not routinely performed. How do we not know that he was in that process and privy to this information? It doesn't matter, you know, that's not direct as this court said in prevention. The fact that you learn of something in litigation through something produced in discovery. Keeps you from having direct knowledge that first hand knowledge. So it's not direct. But the interesting thing here is the fraud is alleged to be happening in a litigation context. So it's not like learning through litigation discovery having to do with some other fraud. But this could be first hand because that's where the fraud is happening. They're getting paid to do the appeals for you. Not at the a lj stage, it's not. What what doctors is it says is that through as counsel just described in that third and fourth stage, he says he learned of it. The fraud, the alleged fraud is happening at the second stage where counsel said he is not involved in the quick reconsideration process. All right, run that by me again. The the quicks operate at the second stage. Okay. If dissatisfied with that second stage, the third stage is the a lj hearing. But is the appeals process the second stage? No, no, it's a five step appeals process. The quicks operate only at the second stage. But isn't the isn't the quicks second stage and appeal? It is an appeal. It is not the appeal where doctors is a alleged he learned. It's at the a lj hearing and the Medicare appeals counsel hearing stage when he alleges that he learned of these. I'll let you solid address that. All right. And the third the third problem. The knowledge is not direct. The knowledge is not independent because it's based on the prior public disclosure in the administrative hearings. And there's no evidence in this record that it was voluntarily disclosed to the government prior to filing. All three of those are requirements here. Are the administrative hearings public hearings? We ask all of them ran from you. Make the. The sentimental that is described why. Why these. Reviews should be viewed as public administrative. Yes, Your Honor. At least two reasons. Number one, there are a number of parties who participate in the hearings who are members of the public. The beneficiary participates in the hearing. An assigned e provider can participate in the hearing. A provider responsible for a refund can participate in the hearing. But that happens in cases where you know we might have matters under seal. And there are hearings and things that happen. We might not call them public disclosures. But if a member of the public has access to them, the cases of this court say that's a public disclosure. It's a distinction the court drew in the missed case between disclosure and dissemination. What's required is disclosure to the public, not dissemination, but disclosure to the public. But this would only be disclosed through a FOIA request, wouldn't it? It could

. All right. And the third the third problem. The knowledge is not direct. The knowledge is not independent because it's based on the prior public disclosure in the administrative hearings. And there's no evidence in this record that it was voluntarily disclosed to the government prior to filing. All three of those are requirements here. Are the administrative hearings public hearings? We ask all of them ran from you. Make the. The sentimental that is described why. Why these. Reviews should be viewed as public administrative. Yes, Your Honor. At least two reasons. Number one, there are a number of parties who participate in the hearings who are members of the public. The beneficiary participates in the hearing. An assigned e provider can participate in the hearing. A provider responsible for a refund can participate in the hearing. But that happens in cases where you know we might have matters under seal. And there are hearings and things that happen. We might not call them public disclosures. But if a member of the public has access to them, the cases of this court say that's a public disclosure. It's a distinction the court drew in the missed case between disclosure and dissemination. What's required is disclosure to the public, not dissemination, but disclosure to the public. But this would only be disclosed through a FOIA request, wouldn't it? It could. That's the second way it could be disclosed through a FOIA request under which protected health information would be redacted. But you wouldn't need to protect it health information to reach the conclusion here. Whether the contractor was doing the review required or not. Well, but they would read, wouldn't they review all of the record review and the physician review? They would. And what? So you couldn't access that through. You could. Once the individually identifiable health information was redacted. That's what section 552B of FOIA would require. It's what the preamble to the privacy rule says is the appropriate approach. I notice my time's up and I'll defer to Mr. DeVecchio on any additional questions. And court has. Thank you. Your honor is Jay DeVecchio on behalf of Q2 administrators. I will be happy to answer your questions, but I would like to make a transition if I might to the alternate grounds here. Public disclosure has been the focus, but we have made the point that if you conclude that public disclosure wasn't the appropriate grounds, you should still sustain the dismissal because one can look at this complaint on its face and recognize that it doesn't meet the requirements of this court with respect to the sort of specificity that's necessary regarding 9B. And it certainly doesn't meet one will you recall. And I can demonstrate that rather simply, I think, and I like the opportunity to do it. If you take a look at the two counts in here, count four is the is account under 3729A2. 3729A2 is different than A1. It requires a specific false record or false statement. And it requires a pleading of that in a way that's meaningful under the court's decision, the twamway decision and this court's decisions. If you look at that complaint, there are only five paragraphs in this entire complaint that address the issue that's being alleged in count four. There's 161 and 162

. That's the second way it could be disclosed through a FOIA request under which protected health information would be redacted. But you wouldn't need to protect it health information to reach the conclusion here. Whether the contractor was doing the review required or not. Well, but they would read, wouldn't they review all of the record review and the physician review? They would. And what? So you couldn't access that through. You could. Once the individually identifiable health information was redacted. That's what section 552B of FOIA would require. It's what the preamble to the privacy rule says is the appropriate approach. I notice my time's up and I'll defer to Mr. DeVecchio on any additional questions. And court has. Thank you. Your honor is Jay DeVecchio on behalf of Q2 administrators. I will be happy to answer your questions, but I would like to make a transition if I might to the alternate grounds here. Public disclosure has been the focus, but we have made the point that if you conclude that public disclosure wasn't the appropriate grounds, you should still sustain the dismissal because one can look at this complaint on its face and recognize that it doesn't meet the requirements of this court with respect to the sort of specificity that's necessary regarding 9B. And it certainly doesn't meet one will you recall. And I can demonstrate that rather simply, I think, and I like the opportunity to do it. If you take a look at the two counts in here, count four is the is account under 3729A2. 3729A2 is different than A1. It requires a specific false record or false statement. And it requires a pleading of that in a way that's meaningful under the court's decision, the twamway decision and this court's decisions. If you look at that complaint, there are only five paragraphs in this entire complaint that address the issue that's being alleged in count four. There's 161 and 162. If you take the time after this discussion to look at them, you'll see that 161 is a perfectly formulaic recitation of 3729A2. That is that the defendants here may have used or caused be made or used false record or statement. What false record or statement we don't know is... Don't you know? No. From the rest of the complaint. No, sir. Don't you know that the assertion is you're submitting for payment invoices and implicit in the invoice is that you have performed in accordance with the regulation and you have. Well, that's a different count. That's count three with respect to the A1 violation. Let's focus on count four because count four you could ensure dismissed out of hand. What does he say in count four? He doesn't say that in count four. He says this. The U.S. would rely on such false statements or records in conjunction with award of the quick contracts. He's not talking about performance under the quick contracts. He's not talking about submitting bills under the quick contracts. There is no statement anywhere in this complaint of what that false statement or false record is except in the context of the conjunction with an award and there's only two other questions. This is the word of contracts and continuous payments they're under. Well, let's take a look at that. Where are the continuous payments? Where is the statement of what the continuous payments are that satisfies some indisha of plausibility in this complaint? There is not one cited. The only paragraphs where he addresses this with respect to count four are paragraphs 127 through 129

. If you take the time after this discussion to look at them, you'll see that 161 is a perfectly formulaic recitation of 3729A2. That is that the defendants here may have used or caused be made or used false record or statement. What false record or statement we don't know is... Don't you know? No. From the rest of the complaint. No, sir. Don't you know that the assertion is you're submitting for payment invoices and implicit in the invoice is that you have performed in accordance with the regulation and you have. Well, that's a different count. That's count three with respect to the A1 violation. Let's focus on count four because count four you could ensure dismissed out of hand. What does he say in count four? He doesn't say that in count four. He says this. The U.S. would rely on such false statements or records in conjunction with award of the quick contracts. He's not talking about performance under the quick contracts. He's not talking about submitting bills under the quick contracts. There is no statement anywhere in this complaint of what that false statement or false record is except in the context of the conjunction with an award and there's only two other questions. This is the word of contracts and continuous payments they're under. Well, let's take a look at that. Where are the continuous payments? Where is the statement of what the continuous payments are that satisfies some indisha of plausibility in this complaint? There is not one cited. The only paragraphs where he addresses this with respect to count four are paragraphs 127 through 129. And there those are nothing more than recitations of the elements necessary to satisfy the cases. Mr. DeVecchio, if we even get to the point of your conference, shouldn't we remand this to the district court for him? Well, I can understand the impulsure, but I think that as- Not so much in impulse, it's what we typically do. Well, the question is just because you can do something whether you should, you know, like my dad used to say, the question is you have the authority certainly to resolve this case. And the question is, isn't the best interest of judicial economy to do that here when all you have to do is look at five paragraphs and you look at those five paragraphs and you see there is nothing other than a recitation of the elements. I invite you to look at paragraphs 161, 163 and 127 through 129. There's not one word of substantiation, not a participle of anything that says what the false statement was or any indication that would allow anybody to go pursue the defense of that case that meets the standards that have been articulated by this court for 9v and by the Supreme Court. Since we're all here talking about it, doesn't it meet the standards of rule even under Rick Ball? I don't think so. We're all talking about the theory here. It's been that your claim is alleged to have falsely stated or at least implicitly stated. We're doing the quick reviews according to the regs and they are not. That's the fraud. All right, let me make that transition for you then because that's a different count of the complaint. Well, I take it that it's part of this count, too, both because of the specific language that says continuing services and supposedly because this underlies, I can supposedly this underlies the theory that we got the quick contract or applied for it by saying we were doing what we were supposed to do. But in any event, what if you know what they're talking about and indeed you know what they're talking about so thoroughly that you can say there's been a prior public disclosure of which would be private court of jurisdiction, how is it that you can say at the same time, but we're mystified about what they mean to purposes of 12v6? Because I think promptly doesn't permit it and it ball doesn't permit it. If you in that decision, how about the appaseling? No, I don't think so. How about the app that David has sent him, doesn't that? Let me address that and handle them, but let me get to your question. It's clear then that it's probably an it ball that if there are another set of facts that meet the conditions of the pleading that provide for an innocent explanation, then you can't infer any wrong doing. That's what he's trying to do here. If you take the entire complaint and you look at what he's saying is wrong here. There's three or four things he's saying. Some of these are derivative judge Rundell from the Van Halen half of David one. He's saying that there is no evidence in this record that these reviews were done. I submit that under twangling it ball, you can't draw on inference of wrongdoing when all he says there's no requirement

. And there those are nothing more than recitations of the elements necessary to satisfy the cases. Mr. DeVecchio, if we even get to the point of your conference, shouldn't we remand this to the district court for him? Well, I can understand the impulsure, but I think that as- Not so much in impulse, it's what we typically do. Well, the question is just because you can do something whether you should, you know, like my dad used to say, the question is you have the authority certainly to resolve this case. And the question is, isn't the best interest of judicial economy to do that here when all you have to do is look at five paragraphs and you look at those five paragraphs and you see there is nothing other than a recitation of the elements. I invite you to look at paragraphs 161, 163 and 127 through 129. There's not one word of substantiation, not a participle of anything that says what the false statement was or any indication that would allow anybody to go pursue the defense of that case that meets the standards that have been articulated by this court for 9v and by the Supreme Court. Since we're all here talking about it, doesn't it meet the standards of rule even under Rick Ball? I don't think so. We're all talking about the theory here. It's been that your claim is alleged to have falsely stated or at least implicitly stated. We're doing the quick reviews according to the regs and they are not. That's the fraud. All right, let me make that transition for you then because that's a different count of the complaint. Well, I take it that it's part of this count, too, both because of the specific language that says continuing services and supposedly because this underlies, I can supposedly this underlies the theory that we got the quick contract or applied for it by saying we were doing what we were supposed to do. But in any event, what if you know what they're talking about and indeed you know what they're talking about so thoroughly that you can say there's been a prior public disclosure of which would be private court of jurisdiction, how is it that you can say at the same time, but we're mystified about what they mean to purposes of 12v6? Because I think promptly doesn't permit it and it ball doesn't permit it. If you in that decision, how about the appaseling? No, I don't think so. How about the app that David has sent him, doesn't that? Let me address that and handle them, but let me get to your question. It's clear then that it's probably an it ball that if there are another set of facts that meet the conditions of the pleading that provide for an innocent explanation, then you can't infer any wrong doing. That's what he's trying to do here. If you take the entire complaint and you look at what he's saying is wrong here. There's three or four things he's saying. Some of these are derivative judge Rundell from the Van Halen half of David one. He's saying that there is no evidence in this record that these reviews were done. I submit that under twangling it ball, you can't draw on inference of wrongdoing when all he says there's no requirement. There's no regulatory requirement to have that. That's an indication of nothing fraudulent. What else is he saying? He's saying clinicians didn't do the review. Where on the regulation do you find the word clinicians? There's nothing in the regulations about that. If he's saying that well, you can infer that clinicians mean physicians. He's not saying physicians aren't doing all the reviews. He's rather using the physicians aren't doing all the reviews. He's not identifying any subset. They're supposed to do. You don't see any conflict between the physician that your co-counsel is taking that this disclosure in public was thorough enough that it meets exactly what Mr. Zizek was saying. Therefore, for 12v1, we all know what's being talked about, throw it out for jurisdiction, and then saying under 12v6, it doesn't meet a notice pleading. The point is that under all means, they were saying in this record, the allegation was in this record, there is no evidence of the review being done. Therefore, we conclude the review wasn't done, and that's bad. So it's the absence of the review. That's the principal allegation in all of me, which is the exact same allegation that he's making here. I don't find anything because there isn't at all here. The co-counsel just said it's not just that. And he quoted from the bankruptcy trustees statement. I thought that they are not doing it. Not just that they didn't disclose whether they were doing it, but that they aren't doing it. But what's the evidence that they weren't doing it, that they were arguing they own court? They didn't have any affirmative evidence that they weren't doing it, other than the absence of the record of the physicians having done the review. It's the absence of the record that is the sole and entire basis for the conclusion in all me, and is the sole and entire basis for their allegation here, except for the additional things that Van Halen says, none of which are regulatory violations. Read them

. There's no regulatory requirement to have that. That's an indication of nothing fraudulent. What else is he saying? He's saying clinicians didn't do the review. Where on the regulation do you find the word clinicians? There's nothing in the regulations about that. If he's saying that well, you can infer that clinicians mean physicians. He's not saying physicians aren't doing all the reviews. He's rather using the physicians aren't doing all the reviews. He's not identifying any subset. They're supposed to do. You don't see any conflict between the physician that your co-counsel is taking that this disclosure in public was thorough enough that it meets exactly what Mr. Zizek was saying. Therefore, for 12v1, we all know what's being talked about, throw it out for jurisdiction, and then saying under 12v6, it doesn't meet a notice pleading. The point is that under all means, they were saying in this record, the allegation was in this record, there is no evidence of the review being done. Therefore, we conclude the review wasn't done, and that's bad. So it's the absence of the review. That's the principal allegation in all of me, which is the exact same allegation that he's making here. I don't find anything because there isn't at all here. The co-counsel just said it's not just that. And he quoted from the bankruptcy trustees statement. I thought that they are not doing it. Not just that they didn't disclose whether they were doing it, but that they aren't doing it. But what's the evidence that they weren't doing it, that they were arguing they own court? They didn't have any affirmative evidence that they weren't doing it, other than the absence of the record of the physicians having done the review. It's the absence of the record that is the sole and entire basis for the conclusion in all me, and is the sole and entire basis for their allegation here, except for the additional things that Van Halen says, none of which are regulatory violations. Read them. He's saying you didn't have clinicians. No requirement to have clinicians. How can it be a false claim if there's no regulatory requirement? You had a subcontractor do the review. Where does it say I can't have a subcontractor do a review? All federal contractors, you subcontractors, how can that be a violation of the regulation? And how can it therefore draw an inference of fraud? You had nurses doing an initial review, but not the final review. Where in the regulation does it say I have to have an initial and final review? It says a review. Certainly a nurse is an appropriate healthcare provider. So none of what he has alleged anywhere in this complaint is evidence of anything wrong under the contractor regulation. So no matter how you look at it, you can't have a circumstance where there has been a violation or an inference under Tom Lee, if all. And this, of course, decisions with respect to 9b that he's pled a violation. It isn't there. Thank you. Thank you. Mr. McCormick. Yes, Mr. McCormick. As respectfully, Mr. DeVecchio says that he and his client can't defend against this case. Almost 100 pages of a peplin paperwork back, a page is back as well as an understanding of the case is clear from the entire complaint. Not taking paragraph by paragraph by paragraph. I think that there's no question that the case is certainly defendable against. One other thing that has to do with a case, a whistleblower, a key damn case is the procedure. And as your honors probably know, that once you file a complaint with the US Attorney's Office and with the Attorney General, there's something called a disclosure statement or a related statement that is usually, well, almost is certainly it's required by the statute and filed simultaneously with the complaint. Usually that contains the level of detail that would be included in a normal civil complaint

. He's saying you didn't have clinicians. No requirement to have clinicians. How can it be a false claim if there's no regulatory requirement? You had a subcontractor do the review. Where does it say I can't have a subcontractor do a review? All federal contractors, you subcontractors, how can that be a violation of the regulation? And how can it therefore draw an inference of fraud? You had nurses doing an initial review, but not the final review. Where in the regulation does it say I have to have an initial and final review? It says a review. Certainly a nurse is an appropriate healthcare provider. So none of what he has alleged anywhere in this complaint is evidence of anything wrong under the contractor regulation. So no matter how you look at it, you can't have a circumstance where there has been a violation or an inference under Tom Lee, if all. And this, of course, decisions with respect to 9b that he's pled a violation. It isn't there. Thank you. Thank you. Mr. McCormick. Yes, Mr. McCormick. As respectfully, Mr. DeVecchio says that he and his client can't defend against this case. Almost 100 pages of a peplin paperwork back, a page is back as well as an understanding of the case is clear from the entire complaint. Not taking paragraph by paragraph by paragraph. I think that there's no question that the case is certainly defendable against. One other thing that has to do with a case, a whistleblower, a key damn case is the procedure. And as your honors probably know, that once you file a complaint with the US Attorney's Office and with the Attorney General, there's something called a disclosure statement or a related statement that is usually, well, almost is certainly it's required by the statute and filed simultaneously with the complaint. Usually that contains the level of detail that would be included in a normal civil complaint. Our related statement was never made, was never brought into the litigation. But if we've been given the chance to amend, it certainly would have been accomplished into the complaint and given much, much more detail. Can you address what Mr. Shockley said with respect to the original source issue that you did not give the United States an opportunity before filing that Dr. Cezic was at step four when he was privy to the process. But what happened here with the review process was at step two. So that he really can't be an original source. Your honors, the first issue, Judge Shapiro asked the same question. We had given, we had spoken with the US Attorney's Office on at least two different occasions. It was not in the complaint, but Judge Shapiro mentions in her opinion, I believe, that she gave us a week to go back and supplement the record. We sent her a letter I have to correspond and speak with the US Attorney's Office here in Philadelphia and Eastern District. So she certainly had access to that. The defendants know that they continue to make a claim of it. If we needed to amend the complaint and put that in the complaint, but that's not an issue. The US Attorney's knew about it. And it was done just a second. I'm not sure I understood that. She knew what? Your Honor, Judge Shapiro knew before she issued her opinion. She gave us a week, I believe, or 10 days after the oral argument, to give her proof that we had spoken to the US Attorney's Office in the government and made the public disclosure. Okay, I'm sorry. I don't know what you're saying. What asked at the point of your client became aware by reviewing things at stage three and these stage four, when the alleged fraudulent behavior was occurring at stage four? I'm going to get to that, Your Honor. Your Honor, the stages are, and I don't want to believe at the point, the DME Medicare Administrative Contractors, or the suppliers of DME, or the first stage for reimbursement. If a provider refuses to pay, then you can take a re-determination by that DMEC

. Our related statement was never made, was never brought into the litigation. But if we've been given the chance to amend, it certainly would have been accomplished into the complaint and given much, much more detail. Can you address what Mr. Shockley said with respect to the original source issue that you did not give the United States an opportunity before filing that Dr. Cezic was at step four when he was privy to the process. But what happened here with the review process was at step two. So that he really can't be an original source. Your honors, the first issue, Judge Shapiro asked the same question. We had given, we had spoken with the US Attorney's Office on at least two different occasions. It was not in the complaint, but Judge Shapiro mentions in her opinion, I believe, that she gave us a week to go back and supplement the record. We sent her a letter I have to correspond and speak with the US Attorney's Office here in Philadelphia and Eastern District. So she certainly had access to that. The defendants know that they continue to make a claim of it. If we needed to amend the complaint and put that in the complaint, but that's not an issue. The US Attorney's knew about it. And it was done just a second. I'm not sure I understood that. She knew what? Your Honor, Judge Shapiro knew before she issued her opinion. She gave us a week, I believe, or 10 days after the oral argument, to give her proof that we had spoken to the US Attorney's Office in the government and made the public disclosure. Okay, I'm sorry. I don't know what you're saying. What asked at the point of your client became aware by reviewing things at stage three and these stage four, when the alleged fraudulent behavior was occurring at stage four? I'm going to get to that, Your Honor. Your Honor, the stages are, and I don't want to believe at the point, the DME Medicare Administrative Contractors, or the suppliers of DME, or the first stage for reimbursement. If a provider refuses to pay, then you can take a re-determination by that DMEC. Then it goes up. If that is denied again, then the Medicare, the beneficiary, can apply to the quick. So the quick is the second step in the process. And it is an appeal in that it's a reconsideration. After that, there is a- Are you saying that the allegation in the complaint that he was privy based on the appeals process, that he was privy at stage two? He was privy before stage two. He was privy even before it went to the quick, because when- Well, he couldn't be privy before. I mean, privy to this information. He was privy. Well, what I want to say, Your Honor, is he had direct knowledge of not of the fraud of the scheme that not to do the medical reviews, but he had direct knowledge of the process of the Bionic Care claims determination. He looked at it and- He didn't know the fraud. No, that would have come after the quick review before the ALJ. Yeah, that's the issue. It's not that he knew the reimbursement process. Well, he knew what the substance of his company's claims were. That's understood. Right. But he didn't know of this fraud until at least the ALJ review. And until after the quick review before the ALJ. Right. And that's that between the two. That's where he learned about it. Right. He learned about the fraud, but he had no about the claims determination process before it. Okay

. Then it goes up. If that is denied again, then the Medicare, the beneficiary, can apply to the quick. So the quick is the second step in the process. And it is an appeal in that it's a reconsideration. After that, there is a- Are you saying that the allegation in the complaint that he was privy based on the appeals process, that he was privy at stage two? He was privy before stage two. He was privy even before it went to the quick, because when- Well, he couldn't be privy before. I mean, privy to this information. He was privy. Well, what I want to say, Your Honor, is he had direct knowledge of not of the fraud of the scheme that not to do the medical reviews, but he had direct knowledge of the process of the Bionic Care claims determination. He looked at it and- He didn't know the fraud. No, that would have come after the quick review before the ALJ. Yeah, that's the issue. It's not that he knew the reimbursement process. Well, he knew what the substance of his company's claims were. That's understood. Right. But he didn't know of this fraud until at least the ALJ review. And until after the quick review before the ALJ. Right. And that's that between the two. That's where he learned about it. Right. He learned about the fraud, but he had no about the claims determination process before it. Okay. But the claims determination process isn't what this suits about. It is not your honor. But I think unlike some of the other cases that we've looked at, the- This is not something that doctors, this is learned about simply from being involved in this litigation. He was involved in the claims determination process well before the quick in the ALJ. So you're saying if you get some credit for his expertise? I would think it would be exactly your honor. That fine face of the open if not. Excuse me. And Wilkins didn't we say, you know, there was the assertion that, hey, I understand the court functioning, etc. I'm remembering the case right. And the- And that I ought to get some credit for for understanding this and bringing that to the court. And we said, no, you're specialized knowledge doesn't- Doesn't give you any added boost here. I haven't made that argument. Looking at the blueprints and you have a specialized engineering knowledge to look at the blueprints. I do believe doctors as it has a specialized knowledge of looking at these- These processes that would have shown him no medical review that others may not have realized. But what my argument is going to is the fact that he knew how the claims process worked before he began to look at the quick review to look for the medical review. And I believe that the defendant's argument is that he simply learned about the process. He may have learned about the fraud at the time after the quick, but he certainly had been involved in the entire process well before that. He's not like a lawyer coming into a litigation and finding a memo and discovery. He had been involved well before that. But does that get him there? Or does he not have to have been an original source privy to witnessing what was going on like Van Halem was? I believe your honor under the press in the third target. It is enough to get him there. I think that learning about it wherever you learn about it, you don't have to be an insider anymore. You don't have to be that person who actually does the off-label marking or you don't have to be the person who, like Van Halem, if you learn about it through a process that is not a public disclosure, I think you can get by now. I don't think this is the example

. That's the key point, right? If he learns about it because of reviewing the ALJ here, has it been learned about it from a source that is my statutory definition of public disclosure? Well, he would have learned about it before the between the quick and the ALJ hearings. How do you learn about it? He would have learned about it in preparing for the ALJ hearings, helping his lawyers prepare for the ALJ process. So something that you worked on in preparation for and part of the ALJ review? Yes, Your Honor. Thank you, Your Honor. All right, thank you. The case is well