please the court my name is when you grew in representing one gill home health care today i'm going to address the issues primarily arising out of the bankruptcy court of appeals along with the amicus professor pato and mr abel is going to address the issues  in this case of medicare provider agreement article i of the winds of forty two u s c section four zero five eight and there's multiple reasons why the district court opinion in this case should be overruled and i'd like to just address some of those briefly in addition to the clear language in forty two u s c section four of five age which does not address thirteen thirty four bankruptcy court jurisdiction and which has stood on change by congress for the past thirty years this court should not extend its reasoning in the bottom metric decision to apply in the case of bankruptcy jurisdiction because the case the facts and the situation in this case is very different than the situation in either bought a metric or the by you for that matter and usually you want to take a few moments provider are alleging that the fiscal intermediary was denying their claims without reason they basically said brought to the district court a dispute with medicare and asked the district court to resolve the dispute with medicare by bringing the claim against the fiscal intermediary and bringing it through section thirteen thirty two jurisdiction and section thirteen thirty two diversity jurisdiction the only reason they were able to use that is because they named the fiscal intermediary instead of going straight to see  that the bankrupt and then allowed to be the fight with medicare to proceed outside of the bankruptcy court in buying insurance the district court went so far as to say you know what you've now met the standards and you shouldn't be terminated so we're going to allow you to proceed under the medicare provider agreement and i'm going to allow you to assume and assign that in part of your your assume the contract as per your reorganization in our case the bankruptcy court didn't do that the bankruptcy court was very clear that what the bankruptcy court was doing was simply entering an injunction to maintain the status quo while the appeal and the disputes with medicare proceeded through administrative channels before the a l j d a b and eventually working its way to judicial review the bankruptcy court saw only to preserve value and an executor a contract that was property is stayed the same as manual itself recognizes that a medicare provider agreement is an executor a contract and a bankruptcy court under section five forty two five forty one takes control of the assets of the estate including executor it contracts and in this instance what the bankruptcy court did was said you know i have to consider a number of constituents i have to consider all the creditors the debtor i consider everybody when a case is put in and we have to deal with the assets of the bankruptcy estate and in this case one of the assets is an executor a contract going to maintain the status quo a let them fight it out we did not ask the judge to allow us to assume that contract or to assign it to anybody we didn't ask the judge to do anything with that contract other than maintain the status quo well we'll have our dispute with them outside of the bankruptcy bought a metric this court dealt with diversity jurisdiction which had always been part of the judicial code it's changed the you know amount of controversy but bankruptcy jurisdiction as we know it today and bankruptcy courts didn't exist under the prior judicial code at the time that these amendments were made if you go back through history you know we have the the one nine hundred thirty nine we've got the judicial code and four zero five age bar thirty four moved that bankruptcy jurisdiction provision into thirteen thirty four in the meantime in one thousand nine hundred six the office of law revision council looks it four or five age and says you know what that needs to be edited because it now he refers to the old twenty eight u s c forty one and they said we only mean to put thirteen thirty one of the thirteen forty six in their federal question and us as a party they left out their team thirty four which under the old version would have been terribly unreasonable because thirteen thirty fo marathon that it needed to be reined in a little bit we need to move it back under the district courts so be the provision of four hundred seventy one is form completely outside of the old judicial code which is what four or five each should refer to and what the bottom metric analysis says we have to look back at the old four zero four or the old judicial code and if those were barred under the old version of for a wage for only four or five age then  than they're still barred today we didn't mean to make a change or congress didn't mean to make a change but fourteen seventy one wasn't there and the new fourteen seventy one gets moved back and becomes thirteen thirty four but it's an entirely different provision it's not the same jurisdictional statute that was there before so that the in that analysis you can distinguish bottom metric where you're talking about section thirteen thirty two jurisdiction which has always been under the judicial code and always provided essentially the same now what about body shores and by insurers it by insurers relied on the bottom metric analysis and by you sure as again they said that in that case the judge agreement had already been terminated and they got a good buy you sure court then issues an injunction and on top of that says you know what now we found that you do qualify so they inserted themselves in the place of the bankruptcy court and  memo and i'm going to yeah i need to reserve it and i need to pass on my time to professor pato if that's all right all right thank you thirty and thirty two diversity and thirty three for bankruptcy jurisdiction for the reasons the ninth circuit has distinguished those and treated them differently it is defensible because structurally the in ram grant of jurisdiction to the bankruptcy courts implicates a comprehensive federal regime where there multi parties involved in adjudicating the bankruptcy race unlike a one on one dispute between a provider in the medicare agreement once you enter into bankruptcy there's a constellation of collective concerns which would be different from a straight on diversity action sitting in federal court and indeed this court in body metric if you go through its analysis of the diversity jurisdiction if we step back it is a little bit counter intuitive that there's even diversity jurisdiction in the first place with a medicare dispute it's a provider or patient suing the federal government the only way diversity got in that which is probably why congress didn't include in its list of factors is through the end run of pleading in the fiscal intermediary suit through sometimes which there's diversity or stiction and so this court about a metric is quite explicit instructions saying that would undermine the surest case just like this court earlier in body metric twenty seven odd years ago and quite frankly just like every court that we've looked at so far has not analyzed this what we called the previous so in its full context that these opinions keep quoting twenty six sixty four b in talks about none of these should change we start in the context that the first subsection of section twenty six sixty four is a retroactivity clause so the context of the statute says these provisions of the statute  subsection b says these provisions only go into effect today but and then there's a grandfathering clause and part b it's but and this is the language all the courts have read in isolation not in the context of this full clause but none of the amendments shall be construed as changing or affecting rights liability except for a before that date and i believe that the best fair reading of that text is you have a clause that says this this has retro effect of effect some provisions have effect today but nothing changes anything for people right now that last provision is a grandfather clause that refers to cases that are in the pipeline on the effective day that the statue was in that no retroactive effect it does take effect immediately today but if there's something in the pipeline there is no change to their rights liabilities accent or and with respect to the body metric or and with respect to the bio shorts court that is not in any of the pins in fact we even tried to look at the brief to see if the courts were prevented with it's hard to find groups of a certain age so as far as i thirty one and thirteen four forty six it really is a difficult textual stretch to say that means a whole bunch of different sections that aren't numbered there and but for this privies of which argue has been repeatedly misinterpreted and misread by courts we would never be having very clear approach about what the court's role is in fixing mistakes of congress in its tax i believe my red light is on so i'll pass on if i may hi thank you thank you thank you and may it please the court i think as with any statutory case it's a good idea to start with the language of statute in particular four of five h as the supreme court has said that three sentences there have different functions the one that is the focus of this case is the last sentence which is no action against the united states the commissioner of social security or any employee there out sh statutes and that's one of the issues here to recover on any claim arising under this subchapter now the claims arising under the subchapter are medicare cl in the traditional sense and if you look at the supreme court's decisions from illinois counsel heckler versus rainer and other decisions they all at bottom type on in fact we've not sought payment of medicare claims and at this point after the injunctive relief claims were dismissed we've not sought any change at all in the terminations process we have not at this point we're not asking that the department of health be replaced as a surveyor we're not asking at this point  report be withdrawn now i can see where arguably those claims might have fallen within illinois counsel or heckler versus ringer but the only remaining claims are for independent constitutional force that also were independent of the term a nation of the medicare contract the easiest way to see that is with the search and seizure claim there was that was done in two thousand february of two thousand and fifteen had nothing to do with the terminations of nightingale home health care's medicare contract didn't even involve premises of nightingale home health care but involved premises of nightingale hospice care and they separate totally separate entities they are the corporate structure is  home care providers and then nightingale home health care is a subsidiary of that as is nightingale hospice care so that yes they are completely separate entities  so that's that's the easiest way to see the independent claims but also the other claims the equal protection claims didn't involve this medicare survey didn't necessarily involve any medicare surveys that resulted in adverse decisions against nightingale home health care or nightingale hospice care there were licensing surveys there were surveys that were conducted that resulted in no adverse action and but they were all part of a campaign of harassment against dr brar and his companies and so they're not in twined with the adjudication of any medicare  claims and again i think if you illinois counsel if you look closely you can tell the kinds of claims it's talking about are claims that can be recovered under the medicare statute and i see i'm he's now where oh ok you have one more minute i don't want to cut you off well i guess the other thing is on me i don't think the court should reach the failure to state a claim arguments the district court should never have reached those once it found it was out without jurisdiction for the reasons in our brief we believe the complaint does state a claim and even if it doesn't the dismissal a dismissal on twelve b six of the first complaint may please the court i am kyle hunter from the indian attorney general's office representing the state defendants in case sixteen dash two zero five for body metric health services versus at night controls in this case for two main reasons first here as in body metric the plaintiffs allege that the defendants committed towards for the manner in which they conducted the medicare surveys  and second in both cases intermediary stood in the place of the secretary of health and human services and were under his control the police in this case refused to address appellants in this case refused to address automatic and the controlling authority that has in this case this court and bought a metric spoke about how the term arising under has been directed by the supreme court to be read broadly and in this case this case arises under the medicare statute because because an entity that was a service provider under under the medicare statute is complaining about the manner complained about the regularity and the intensity of medicare surveys that were done to ensure that this provider was in compliance with the medicare statute with the requirements that adequate medicare statute  medicare statute is designed to provide health care to god to help provide health care to some of the most vulnerable citizens and and in doing this congress allow the federal government to enter into these contracts with providers and these providers are subject to the agreement are subject to inspections or surveys as as they're called in this case to ensure that they're complying with the statutory stand and regulatory restrictions placed on service providers and in this case the reason that did they get these claims arise under the under the medicare statute is because at its heart the complaints by nine gayle and hospice are that the manner in which these surveys were conducted was unfair that at its heart is a claim that arises under the medicare statu spoke about the expanse of the medicare statute and the need that congress intended for organizations and intermediaries to stand in the place of of the secretary of health and human services and that they cite to two congressional history that talks about that that when these intermediaries are acting they're acting on behalf of the secretary and carrying on for him the governmental it ministry of responsibilities imposed by the bill in bottom metric as well as in american health versus rice or indiana in that case indiana actors were performing surveys just as they are here and and the court noted noted that they were acting on behalf of and that's agents of the health and human services and so in those two regards bottom metric is controlling here  five age in hygiene thirty nine and therefore somehow the the you are explicit reference and for all five age related can't work as it was originally intended i think in considering that point it's it's worth considering the kind of bankruptcy jurisdiction concurrent jurisdiction over matters that would otherwise live within your exclusive jurisdiction of another form but none of those are real the material to the kind of jurisdiction that was originally precluded in section four five jurisdiction bankruptcy jurisdiction united states as a defendant jurisdiction of the back provision of the code was subsequently riccati five kind of destroying the chorus reference and the original for all five age congress set out to fix that by looking at a revision proposed by the office of law and then acting it out that office of law revision provision into positive law there's nothing in that  card treated differently so in the final analysis the fact upon a metric concert involving diversity jurisdiction in this case involves bankruptcy jurisdiction in our view a distinction without a differen court has said most recently in illinois counsel and in cases like hector v ringer it is intended to shield the administrative process from premature judicial intrusion it is to allow the agency with expertise in these in these matters to finish its job to create a factual record to apply its expertise in a case like this one involving the term a nation of a substandard health care provider to make a determination as to what is the appropriate happen what happened here you have a bankruptcy court that substituted its own determination of whether the patients were really at risk for the secretary's expert determination you have a bankruptcy court that quite extraordinarily in my view took upon itself to create a new evidentiary record on this question and stead of looking at the administrative record created by the court you have a bankruptcy court that decided that it wasn't satisfied that the patients were at risk and therefore was going to keep this health care provider in operation notwithstanding the secretary's very considered determination that conditions and manner of service of this health care provided her place it's patients that intervene in the niche media jeopardy of serious harm or death this is precisely the kind of interference in the secretary's enforcement processes that congress sought to prevent in section four five  view sufficient to dispose of this case but the court should not overlook the second sentence of section four five page which provides that no findings of fact or decision of the of the year of the commission or social security and you should read secretary there for the commissioner no final shall be reviewed by any person tribunal or government agency except as here in provide so what that is is a directive to the courts not to review a decision of the secretary except as provided in the scheme which in turn requires that there be a final decision of the secretary before there is judicial review and the judicial review privy proceed only after exhaustion of administrative from the final decision and an a ction in the district court that sentence that second sentence of section four or five page standing alone is sufficient to preclude jurisdiction here and relate the court could even  consideration of section of the third sentence or section four or five age because the second sentence is so clear in the bio surest case does agree with this analysis it's most of its analysis is focused on the wouldn't agree with that conception framer that section for all five h is designed to preclude the resort to jurisdiction other bases of jurisdiction even if those other bases of jurisdiction could be satisfied so the fact that something might fall within the grants or bankruptcy jurisdiction is not sufficient given the section four or five each far even on its own terms however even analyzing whether this case falls within that suit confined solely to whether this case falls within the grants or bankruptcy jurisdiction we think accounts claims would fair most of their argument is is focused on the notion that the medicare provider agreement is a species of property it's a ras and it is subject to the bankruptcy  exclusive jurisdiction over property of the state now the main problem with that argument is that the provider agreement was terminated before the bankruptcy case was commenced there was no extant provider agreement at the determination could not be deemed final and the court sort of cited in support of this argument some state law cases dealing with how our franchise agreements are terminated under state law well that it of course is not how to analyze whether a federal contract is in effect a federal contract is defined rights and obligations are defined by federal law by federal statute and federal regulation and here the regulations make clear that the terminations occurs first and he writes of how it review happened after the terminations is in effect not before and indeed i think you know that conforms with common sense when a protractor is terminated it is because the secretary thinks there is a grave threat to it to the patients being served by that health care provider where would the court expect what kind of time with the court expect to find with respect to review of that kind of terminations well i think it makes sense that congress would say the terminations happens this claim in the bankruptcy court there were several million dollars remaining in the estate principally intended at that juncture for the payment of claims for administrative expenses we thought we had a right to have at a minimum a pro rat claimants these are large law firms accounting firms the kind of professionals you expect to see the estate they are well i would surmise that they are good for the money if the court were to the conclude that there was an have a single shareholder who is the single owner i'm sure mr brewer wrote disagree with me chapter and verse in what i'm about to tell the court but we think there is evidence in the record that given the way the financial transactions occurred among members of this corporate family we at least have a substantial claim that we can pierce the corporate veil and reach some other parties and i want to stress to the court we're not asking the court to resolve that claim no one should we don't want the court to decide that they fail to be peace  for purposes of jurisdiction i think all the court needs to do is satisfy itself is that we have a reasonable claim of potential claim on this record and we think we have thank categorically different from any grant of jurisdiction which is much narrower in the past so there's another basis of distinguishing that jurisdiction i found it telling that my friend did not mention anything about the full clause of the previous no talking about the caption and talking about that and i want to emphasize the specific words that the conjunction but in twenty six sixty four feet is fully consistent with that being a grandfathering clause to read it the way other courts have done the but should be maybe an and or new sentence and second to textually it says before that date and before that date is the quintessential language of a grandfathering clause when you say you don't change any rights or liabilities that exist before this state when we talk about her anatomy and and so i find that absence of any refutation of the full reading of it quite telling which i think the court should feel comfortable following the text and it's fine in that regard to overrule bottom metric which never had occasion you consider that full text with regard to the exhaustion doctrine that was brought up during my friend's time this court's precedents on futility are quite clear martin's actual ale is quoted in the briefs that futility is a perfectly permissible grounds on excusing and exhaustion as a matter of bankruptcy policy about whether the contract was still part of the of state of course there was not a time specified for terminations which contrasts this case from the buying shorts case where a specific time of per turn anation was specified this just had a general date and in any event the conception of property the state is so broad that even a terminated contract in which there were some appellate rights through the administer proceeding probably the state is very generously interpreted in bankruptcy law and so i would argue that the bankruptcy court did not bear in holding that the  it on life support contract was still property of the state it was not terminated by the time specifically specified nor did my friend in his lower court proceedings pursue challenging the lack of a stay and so i don't believe that the that this be considered that that it's sorry i should say had a state been imposed we might have had some different position on the disposition of the assets and on the challenges presented there in the next big point and maybe my last point what's my bit about if it matters like what you may make that thank you i just want to speak to the sort of the bigger philosophical point about what the bankruptcy court interfering with the medicare and second guessing the medicare judge and i think is why it's so helpful to distinguish this from by you shores in by shorts the eleventh circuit case the bankruptcy judge ordered and currently enjoyed their license to be resuscitated says medicare's wrong you're getting a license back in the medicare people like oh my goodness in this case all the bankruptcy judge did was enter a temporary injunction status quo to give them time to go to medicare and talk about whether the election should be revoked and imposed to stay within the bankers i think that's a factual that's thinks in butt but from a policy perspective professor it think one of the beauties of bankruptcy is that it's that it allows you to do both so here's what should happen in bankruptcy going to bankruptcy the bankruptcy judge can say hold on to everything and then medicare can say we're having a dispute and this really should go before the ale chickens he just knows or she just knows a lot more about in medicare we're not going to do anything wrong to dissipate assets of this estate because there's other stakeholders as employees a lot of claims and so we have to integrate the bankruptcy system with other ministers systems in this federal government have complex environmental laws comics tax laws and everything maybe