andren versus secretary department of health and human services very sympathetic client and  the and if if we were to assume the judge cooper was incorrect in requiring a physical presence and that statute should be interpreted differently so that that's some form of advocacy would be required here how do you having trouble figuring out how you still prevail in this case well your honor the question is whether or not the position of the united states was represented and the question is could the position of the united states ever be represented i certainly will in this case and and veering from where the bright line could be and let's talk about this case and then i'll talk about my ideas about how it could work you know in other cases in this case the documentary support for the position of the agency the position was that doctor had it should repay six hundred thousand dollars every penny medicare had paid him over the course of seven years the documentary  support for that position was overwhelming it was it comprised twenty five boxes of medical records it comprised a sixty four page spread sheet which had struck me five hundred individual documents really merely evidence aren't they in and of themselves just evidence to be used some how or another to be the subject of inferences one way or another but in another themselves did those documents constitute advocacy and well your honor they're not just evidence they in fact the spreadsheet particularly for each and every one of the claims advocates that a claim should be denied or not and gives the particular reasons why the claim should be denied or not but then you're saying in every adjudication of this type at every hearing when there has been a government position bit your honor no every adjudication will not be rendered an adversary adjudication if there is a flexible standard applied as congress intended where courts will determine based on the facts and circumstances whether or not it was a true adversary proceeding in this case i submit it's an easy decision because the the position of the agency so it was so byzantine was so convoluted was agency from nursing homes doctor handwritten treated patients at nursing homes and therefore created the medical records at the nursing homes these are the sixteen bankers boxes to twenty five bankers twenty tonight of the so it's that was the government government compiled all of this it wasn't the records that handwritten bought brought to the proceeding that's exactly correct or on and the twenty five bankers boxes tied to the sixty four page very few were they the back of the sixty four page spreadsheet itself advocates a position you should deny this claim because of reason codes two three and four and then you go to the the index of reason codes and reason to says you know the documentation doesn't meet  and three says it doesn't meet this require your saying that the position would be represented by counsel or otherwise only if the represent the represented pieces is based upon the haft of the position in other words it what if it had been a two page spread sheet and two boxes and it was a one page conclusion and that was yes i am and i think that the lane decision that i cite in our briefs the north dakota district court case actually does this quite well in lane the court was presented  hearing where it wasn't a medicare hearing it was a farmer's home and ministration hearing but nobody entered an appearance on behalf of the government the petitioner hooper there was some testimony wasn't there was some testimony your honor but if you read the opinion very clearly the judge says this was an adversary adjudication for two separate reasons reason number one is that the support the underlying reason for the agenc decision is in compassed by an a a c an office of general counsel opinion that was examined by the court i'll get the exact quote it was extensively uncritically reviewed by the ne the hearing officer and the district court noted that this opinion was far from a procedural technical step in the process it was at the heart of the underlying action now what the lane court also does is distinguish is a case where a document is not sufficient to create an adversary proceeding and it's a case that apple e sites here  and the petitioner pointed to a letter received from counsel to the social security administration the letter didn't form the basis of the underlying decision by the investigative panel in that case it was ten generally involved in it best and what the lane court does is exactly what i think congress wanted done in coming up with a flexible as opposed to a bright line standard which is to look and been represented in position has to have been taken were staked out prior to the hearing while you're on how how do we go about crafting some limiting rule that looks at that pre hearing activity that clearly is a step and maybe the step turning clearly judge cooler and they happily would prefer a bright line rule that wouldn't require this line drawing and the bright and i will go so far just speaking for myself to see the bright line rule crafted by leaving them at least in a cucumber because i don't have a great answer to your question how do my best but it can't be obviously you just didn't get what you want i salute lee without a doubt and that's the potential  in the the vast majority of appeals i know apple he talks about social security administration appeals and there's a huge number of those appeals by individual claimants and what whatever rule is crafted would not touch those cases except in the most extreme circumstances in cases where you have a provider appeal where what's its what's at stake is seven years of payments and twenty five hundred individual claims and twenty five banker's boxes what the rule that's crafted would be such that a judge could look at that and say oh andren had to hire a lawyer hander and had to hire an expert the a l j took eighteen months to bowl through the the position of the agency we asked for this appeal and it wasn't we actually didn't have the two day hearing the two days of live testimony until proximately sixteen or government had the burden whereas in the social security situation it's more that the the claimant is is moving forward i mean i think that might be a distinguishing feature i don't know what your honor when we appeared at that  judge with your point about staking out a position make no doubt about the the agency had staked out a position hand written you owe a six hundred four thousand out well but there's a problem at least when you'll go that far because that to me is merely a restatement will my last question to you which is mr dr hannan just simply didn't get a good result that can't be the answer and it is not the answer you are there is one other important distinguishment perhaps in this case that i want to make these types of proceedings these all of the legislative history i would argue is a wash because this particular proceeding in alle ga hearing of a provider of appeal has only that h h s or c m s i'm sorry has the option of participating now in this case the a l j asked for participation from the carrier it wrote and  said i want you to participate i want testimony and evidence on the statistical extrapolation that gave him a serve c m s a disk of decision point the carrier decision point we can either participate by fully participating in or an appearance and you know whole hog be a participant or we can participate by providing an answer to the judge or we can do nothing it was absolutely in its can ability to do nothing in that could be held against in this case c m s took the middle ground decided to participate by providing additional information concerning and supporting and laying out its position that the audited results should then be extrapolated over and tirade even if it did provide additional information for the hearing it did your honor that's without the spirit it's a what and what was the nature of that it's a fifty pages of statistical explanation as to why the position of the agency that the audited result should be extrapolated over the entire universe it's supported that argument was this then used by matter of fact the big issue here it drove one hundred dollars exactly right your honor a quadruple the dollars at stake and ultimately it was determined by the way that it was inappropriate to extrapolate so your argument would be that by providing the additional fifty pages it it's position was represented or otherwise yes you're right if it had done absolutely nothing it would have a much stronger argument that it did not because it did not represent its position is there has to be a difference you can represent and participate because there is a specific regulation on participate yes so represent has to be something a little bit less i would thank you for saying a notes i forgot to and i would think that that just by him because they don't have to participate but if they represent so it was at that point in time that the carrier slash agency or the actor the identity accurate was at that time shows to accept the invitation of the ale j that this proceeding was transposed into something of an adversarial nature your honor we took another step towards adversary proceeding at that point i hesitate to suggest that be a bright line i don't believe congress intended a bright line and so what the court as well if it's not a bright line was it the critical factor and point in this case it's certainly not your honor it certainly is to the extent that it will distinguish this case and getting back to your question  distinguish this case from the vast majority of other cases that one feature that does nothing have exactly right and it's completely within the agency's determination it can decide what it wants to do and it isn't held against it if it decides to stay on the sidelines regulation that springs from the model rule very clearly really interprets what congress said it says somebody has to both enter an appearance and participate the congress didn't say that now i read the c m s regulation as having a safety valve built into it specifically it's point three a that sets forth what i consider to be an inappropriate height and standard for adversary adjudication someone has to enter an appearance and participate if the court were say that ends the equation adversary proceeding equals and or appearance and participate i would suggest that that would be an inappropriate deference to c m s because they're there tramping on congress at that point but thirteen point clearly don't fit into sentence one we do not fit into sentence two and then sentence three says if a proceeding is not covered under either of the two previous sentences a party  may argue that the act covers the proceedings i do that as a safety valve and given that it's a safety valve i believe the regulation can be deferred to doesn't trample on congress and yet it doesn't put me out of court here so you're saying that the department's position is that a person has to appear whether it's counsel or and lawyer someone has to be at the hearing from the agency or else it isn't represented situation is a different question but in this case there was a hearing and nobody the have the government appeared the model rules developed by the ministry of conference of the united states which are subject to deference and their staff are i think we also have to then the concept of participation the regulations regulations have a specific provision for participation surplusage is not if it has to be you know representation means participation was was intended to to resolve persists for the doctor whether somebody from the agency standing there are not well i can make two points in response to that the first is as the eleventh circuit government so it's not it's not simply the presence of a live person but it's what that person is doing in the context of the proceedings are you saying that person they there is some level of advocacy that has to be they can't just say we stand on our sixty four page spread sheet and these boxes and sit down well there has to be this is consistent with us regulations something apart from c m s is participation in an effort to decipher and i think these are the words that were used in luminous mountains of documents that's not the case a request to specific information on the statistical methodology used to calculate the overpayment this is as you  earlier factual information factual evidence there's a certain methodology that c m s uses to calculate these overpayments it's contained in our guidance angles etc so c m s is contractor provided that information well over a year before the when it looks at a provider and tries to make a determination as to whether or not medicare is overpaid that provider it requests then of the beneficiaries at reviews and medical records to see if the documentation requirements meet the requirements to authorize payment for the services provided so twenty five boxes of documents are boxes of documents of the beneficiaries presumably created by the provider the twent sixty four speech page spread sheet is simply the determination a by the auditor as to whether or not each particular claim meets the requirements so what appellant's case would  it i think it's a fully presented position i mean we do know that the position that's talked about in the statute is not just what's presented at the hearing but what the act that has led up to it which read be thread she and the question is whether you know it's that position is represented now you could say well it obviously was represented because looking at the ale jay's opinion here that that's he did he looked at that i mean not only did but that formed the basis for the adversary proceeding just before him the government says x and the doctor says y and i got this expert this says position was represented because you know the age l j didn't pull this adversarial didn't reach its conclusion you know out of whole cloth he clearly had a position of the government on one side a position of the doctor well so to say that there was an adversary isn't really in a fair flexion of what happened although i've wondered going back to the a j and the and the language that congress used you know they said adversary proceeding you know we're not talking about rule making right or other administrative proceedings you know we're really talking about when someone has to go out of their way and fight city hall if you will and the threshold issue is was the position represented and only then do we get to not adversarial proceedings however if in fact the secretary chooses to appear if the secretary makes unilateral decision to appear that would become an adversarial decision congress clearly had in mind the scenario where the actually taking sides i don't i'm not familiar with the social security perceive things but i know that there are many medicare appeals which are that smelly for informational sessions because there's a lot of you know lack of information about medicare's very complex came out rolls the other thing we have to keep in mind i think is that when congress passed each job it took to with a very clear i  it repeatedly stated that the reason why i consider such as a ministry to proceed is under the social security act which includes medicare medicare appears under title eighteen of the social security act it's because of its concern about costs so  make every single medicare overpayment determination that ironically well substantiated some fifty to that is something that congress never had in mind only if the government's position was  unjustified once you get through i mean this is only the first step think ok it's adversarial then you really look at the heart of the matter and you know if handed had not been successful i mean that that position remains to be seen or might even find th first counsel mentioned that the onus documents are not in the record from the district court and while she's right i would note that the docket entries from the administrative law judge hearing are in the record and they helpfully list the document as well as the number of pages associated with it and that's at eighty two through injuries or three hundred pages of carrier procedural documents and that's item number three thirty two one eighty four and six hundred four pages of carrier legal research and that's item thirty three on page eighty four so not only was their position represented they didn't have page limits like we do in this court and were able to flood them with a thousand pages of of additional documentation that it thought supported its position ok and the fact that those documents aren't physically at the district court i believe doesn't matter because the fact that they were on at the administrative law judge you know if i need to understand this give me the methodology your honor i believe my colleague is correct in that point i have no indication that they were those documents were particularly requested as to the request for participation by and the additional participation by c m s those documents are at the docket number thirty six on page eighty five eighty four that's the request and docket number forty two on eighty five that's the response now my colleague's exactly right that i mischaracterized the nature of what was requested and what was provided and i didn't do that with any malice  beforehand i had never seen those documents the first time i saw those documents is when my colleague sent them to me and said hey you misrepresented those documents what we've done your honor since the content of those documents were arguing about this relevant to this appeal even though the documents themselves were not part of the record below i have filed a rule ten emotion in attaching the those documents and asking that the court put them into the record because it seems appropriate to me that if both side is arguing about the what's in those documents that the documents themselves like a best evidence kind of notes in the documents themselves be included the fact that they're on the docket which is in the record i think is sufficient to allow them into the record at this point and i do on the docket is a motion by me to have those documents of out into the record on which docket is that before us yes your honor that motions outstanding as we speak now your honor judge smith you raised the prospect that for the possibility of gamesmanship if the agency were to send in its position papers and then not com and not participate in the proceedings and isn't that wouldn't that be a bad thing in essence and i want to point out that in apple lease briefs there's an interesting description of a similar ability to game the system that was a loophole that was closed by the court i believe in one thousand nine hundred six not by this court and that was the situation where the agency took a whole bunch of positions pre a l j hearing level and then hone their positions at the j level and then would argue you don't get fun you don't get paid under egypt because our position substantially justified and congress went in and redefined or i should say redefine defined the phrase position of the agency to include what came before to stop that instance of gamesmanship and i'm not saying that they necessarily game the system here although i have argued that in the papers and i believe it i'm saying that it that is if you accept this interpretation that they have this binary switch i know i know when aegis going to apply because if i show up it does and if i don't it doesn't then you create a agree but i think it's they that have to go to congress if they want the bright line they have to ask congress to give it to it's not appropriate for them to simply crew pass a red regulation and say ok a bright line exist where there is no bright line convenient yet acceptable