sport hospital versus secretary united states department of health and human services mr myers and ms green you take your time setting up but yeah we do believe that this court has standing you have it good or you have me can we compel agency action under seventy six to what we're seeking your honor is we're seeking to williamsport hospital the only  acute care hospital in lycoming county fell into a black hole created in part by this court in guys in her and the eight with the agency did is the agency refused to comply with this brought an injunction or something as compared to just filing under the current rules whereby you know you didn't qualify and the hospital did that your honor one of the problems here is that an i'm going to have a problem answering some of your questions perhaps because there's no factual record what happened here was the district court issued a order requiring supplemental briefing and treated the defendant's motion for judgment on the pleading as if it were a motion for summary judgment when there was no record and in fact that's exactly what happened the hospital did apply to the agency and did seek post post  interim final rule application relief from the agency the agency rejected it and said we don't have com to adjudicate you or your request for an appeal for lack of a better word because the the agency requirements  required to rule within i think it was a hundred five days so what we're arguing about here today one of the problems is there's no record and the so there so to answer your question we did we did we could filed an injunction is what you said but we did not because the i f r the interim final rule was was not published instead the department of health and human services was taking the public position for judgment on a pleading we were involved in a discovery dispute in front of the district when we were seeking we would be the difference of opinion about what the administrative record consisted of we were seeking documents consisting of the got some of the guys their documents you know and i give you a few examples of of documents that we did not have at the time and in our in our appendix at the peak at appendix number four thirty four and four thirty five and this is an example of a document that was not produced to us in the underlying case but was attached to the department of health and human services supplemental brief in response to the did this records request for supplemental order  and it is a march thirty first two thousand and sixteen letter from the center for medicare c m s to the lawyers and the guys in your case in which it's set in this is before the promulgated in of the interim final rule in your honor to get back to judge ambrose your first question about why you know we have standing here as we were we are seeking the we're seeking our claims because the defendants did not promulgated the interim final rule in accordance  with the guys in our case so in this in this letter march thirty first two thousand and eight it did eventually did that they did and in the letter to the guys in your lawyers again this was not made available publicly to us but it was part of the it was a doc board of the third circuit's decision decision and advise advise the board that it must render future determinations consistent with that decision this is march thirty first two thousand and sixteen which is six months after the application was due by williams court under the old rule which was should have been which which wins were believed was no longer in effect two weeks after this they promulgated the interim final rule is why are you not far from bringing suit your position is that had you appealed to the secretary the secretary's ruling would have been final and you would have been precluded from relief but because you didn't appeal then the ruling is in the ruling of the secretary and you have a right to file suit is that correct yes that was the and that any one of one of three reasons we put forth in a supplemental or this court has jurisdiction over the final decision of the review board or the administrator denying the hospital's application for reclassification so it's not just the secretary in terms of the way our court has reviewed it it's also whether it be the order or the administrator i don't know how to get around johnson well your honor we get around it by citing the mock mining which is the claim language of the statute the plain language of the statute provides that you're asking us we can we can appeal directly to this court because of the factors in the underlying statute are the same we did not apply to the secretary we tried would not appeal to the secretary although we tried and again your honor as i said earlier one of puff issues one of the problems we have here is because the district court treated this ruling as if it was summary judgment instead of a motion for judgment on the pleadings and that is not in the record the fact that we did see secretary approval and if the secretary had agreed to accept that then we you know we'd be here today which i don't need to tell me how i get a room the johnson case from two thousand and two because your honor we  here well but that can't be that by not filing an appeal you then can can go into district court especially i just say to get a language that says and see the board's ruling is fin of the rule was in april during that time period the the defenders were not allowing for a simultaneous application by a rural and urban which the and one final rule allowed in april when that will was ultimately published and we had not been published earlier so the winds were had no idea how to appeal what to do and but there the interim final rule said that it will apply that rule so that you could have simultaneous whirl and urban classification in order to go forward but it would only allow that for existing appeals so is it the interim funding will set for two thousand eight year applications that the new rule would apply but it would not apply for two thousand and seventeen fiscal applications unless there was an appeal pending and that's a valid equal protection crime because  instance not there that is the bit that is the primary basis for equal protection then you are not similarly not similarly situated to anyone who is being treated differently there these are applications to two different sets of facts isn't that correct well the you you mean that you they have to establish some parameters under which they're going to make this apply to x or y any time that they do that and someone is not why but it's x that's an equal protection challenge well the similarly situated your honor is the the underlying plaintiffs or hospital itself which not not the procedural posture of the claim but the actual hospital itself was similarly situated in that it was a it was one of the hospitals within the urban and rural kind of grey area that was applying for reimbursement and that is a similarly situated end to arbitrarily and secretly your honor secretly say that we're going to treat differently for the people who have filed an appeal or had appeal a live appeal pending and again i'm going back to the fact that this there's no factual record here to to argue where the peel should have been pending when for reclassification rule that was overturned in carson or the final rule if it would if the i f r had been applied when sport would have received the funding and would have received five million dollars for reimbursement for his its patient care if and that is a fundamental error that the district court made that it seemed to think that we were we were arguing that the i f r itself was was was applied improperly in fact it was never applied for a question where why didn't the hospital seek oral one status and then apply and file for an injunction it would ring the board not to apply the reapplication rule and that was the black hole that it fell into between because if it had done that it would have been penalize essential e the same penalty that resulted in this case in order to in order to at the time if because the i f r was not applied to williamsport it had to read designated itself as a war hero hospital in which case it would all loss the funding for a year because if there's a lag time of a year between the application and the actual seed of the funding so it would if it would have been ed on the basis of subject matter jurisdiction you don't have standing i mean they were harmed so don't they have standing i mean maybe that you don't think they have a claim they haven't stated their product line but really that they have no standing w urban area pursuant to her regulations the hospital has been no more than fifteen miles from the urban area right but what you're saying is they really don't they can't state a claim but they do a standing to come in but their injuries are not traceable characterization of harm that was caused by the government i'm trying to figure out so to me they're asking this court to intervene that they could have if they sought for a one world status that application had been denied would you dish or review the rejection also be part so if if they fifteen days to seek appeal to the ministries are willing to work did not do that here they stated that they tried but what big wrote a letter to the minister seeking her asking her to exercise her discretionary review that was well past the fifteen days on which they had time to appeal that determination they did i didn't like the idea of whether judicial review board that is where we have jurisdiction effect to look at this it gets very complicated it seems let's assume that their particular application runs into a problem it's denied then we may not have jurisdiction under thirteen ninety five but what if they were challenging the rule itself somewhere to what was done in the d c circuit and and our view and some of them and we don't have jurisdiction to look at the rule or do you're here in their submission they say they're not seeking reclassification but they're seeking the difference between the amount they were paid and the amount to which was statutorily in total so they're they're really are seeking relief from the actual issue those are only subject to a rational basis review and clearly factories actions that the fragile standards government determinations comparing monetary benefits are entitled resumption of constitutionality earlier when you said  from the get go and avoid the black hole what would have been their clear path so soon as getting here was decided they could have applied for for one study ok and what would have happened to that regional office must make a determination within sixty days of i think that my answer to your question is relates to the argument by ms green we could not have we were in a black hole and as i said earlier and we could not do anything about one i'm just trying to see what's what's the jurisdictional hook here so sullivan your honor held that you have your jurisdiction but how do i get around we have a case when judge smith was on the district court or chief judge the case called to bar the regional medical center versus your labor in ninety six and basically what he was saying there were the agency rule was ostensibly dealt with or argued to give jurisdiction essentially said you can't get through the back door which you can't get through the front door and that was affirmed by our court so while parkview and so open in the d c circuit may go another way by saying that if the agency rule is really collateral to your the attempt that you have for your individual case we have secretly continued to apply it and there are there are facts that are issue here contrary what ms green said there's no way that we need to put a port could have could have rectified that situation it either had to undergo could because the defendants were applying the reclassification rule even though guys under said it was unlawful they were there continuing to ply it and they would have had to have agreed designated themselves as a whirl and a re applied instead of urban they were a mistake they state college index and they would have had to reclassify as well instead of simultaneously proceeding which is what the new rules said they could do did you want the district court to say that what they did was was wrong and the policy regulation was wrong or did you want the difference between the amount you were paid and the amount to which you believe you are statutorily entitled i have to say yes you yes but because that's what you said in your submission but that you are seeking that difference between why is that not but a guy who are already ruled guys are already ruled that the that ok so you didn't have a claim as in guy singer that the policy the regulation was wrong because it had already been found that it was wrong so you clearly were asking for the determination to be undone and to get your money knowing what we're seeking is a determination that the continued application of the reclassification rule after it was brought herman to be unlawful was improper and it's continuing application look it was unlawful ok was unlawful and if the court said that that's fine but what you really wanted was your money and that right well i think that's true for guys or two i think that's true for everyone guys you know they're what they agreed there would be no action on the application it was not that wasn't before that  what we are seeking is to be treated like we should have been treated after the after the guys and after the guys who were court ruled we should be treated so that our application could be simultaneously considered to be world and u rban a result of that would be a monetary configuration that's true but we're really seeking the relief that we're seeking isn't is that there will be applied like it should have been applied and your honor i'm just very decisions i mean isn't the whole you know you know it's frustrating for us to argue improviser neutrality because one of the things here i think it's a red herring i think that i understand that it's really important to the federal government for budget neutrality but we're talking about one hospital that fell into a black hole in williamsport pennsylvania there's no real budget neutrality here to the extent there was any budget neutrality was already decided in god's name or how do you respond to the point that we've made and  think you're posing council made pretty clearly that the way out for you in this quote black hole close quote was to see a big in effect reclassification right and you're there a simple answer to that and i would i would like to refer the court the panel to a specific instances in the record and again the record that was not the balance but we could not win support could not do that because the new rules said they could apply simultaneously people really the decision has to be made within one hundred five days and in between that window the interim final rule was promulgated but before before the interim final it was probably gated in april two thousand and sixteen c m s sent a letter to the or lawyers saying now we're going to start applying in march thirty first two thousand and sixteen this was this they filed a brief in the lawrence case in the second circuit saying we're not going to we're not going to apply guys in here on august eighth two thousand garnishing or outside the third circuit yeah they do but they said they were telling they were telling the second circuit they're not going to apply in the third circuit and they were telling the lawyers and the guys in a case they're not going to apply in the third circuit and they put it in the application that they're not going to apply it in the third circuit so when they say oh if they could have done it it was in the third circuit it was not in the third circuit could you have filed at something at that point to get a declaration of exactly what you were supposed to do  presented with this this black hole and your honor that's compared to simply file something assuming that they were going to somehow deem you reclassified that's exactly what when support was trying to do they were communicating with the secretary they were communicating with the m d c or be they were computer communicating with the c m s they were trying to do to try to figure out a way not to fall into this black hole they asked and they were rejected and that's part of our part of our relief and part of our claims were saying the secretary should have exercised his or her discretion at that time to consider when sports application because of bell in this black hole and again when this court was operating in the dark it it not only was it oh i just can't make these agencies behave now i guess if you're a black hole you're in the dark thank you thank you thank you to both counsel for