everyone is here so we will proceed in order each a litigant will have two minutes of uninterrupted argument and at thank your honor may it please the court brian feldman propellent congress chose command that registered nurses bring their expertise to and read nursing home survey congress rejected proposals to give states discretion order choir nurses only on annual survey congress used precise statute statutory cross references in a manner endorsed by five recent supreme court cases the secretar thirty one jurisdiction not only is there no such statement here but to the contrary when congress enacted medicare and medicaid it did so together in one thousand nine hundred and sixty five and in that act chose to strip jurisdiction only fo medicare and not for medicaid respecting that choice will not open the floodgates facilities challenging adjudications like survey results or penalties will still need to exhaust their mistreated remedies before before coming to court reversing here will allow for more room making challenges under the medicaid act to proceed as in the seven circuits that when we counsel case but not open the floodgates to specific challenges to an exhaust and michigan association in the six that we submit that the seven cert got it right and the reason why is ultimately doctrinal although i will address the policy concerns as well doctrinally a clear statement is required to withdraw jurisdiction and the supreme court has gone so far to say mims that even if there is a rationale for stripping jurisdiction like the th circuit purported to find that quote may fit hand in glove with congress's objective about to leave participating facilities both of those arguments could not rise to the level of changing the doctrine but they're wrong in any event there's no textual basis for either this essentially identical argument is and naturalistic as well right if we're violating a unique meditate act statute it struck but one that is doubly offensive and also violates medicare survived there is no two wrongs make a right  is there any reason why congress didn't incorporate horrified into the medicaid act is there any rationale for it because it does seem like it's an odd difference between the crew and their otherwise  with the saying yeah yeah that's that's an excellent question your honor here's what congress did they didn't tell us why but there's a there's a i think an obvious answer to the question which is congress the provision that existed for social security if social security is one hundred percent federally run as the courts know well social security beneficiaries will sue the federal government when they don't get their social security the same is true of medic one hundred percent federally run in is true program beneficiaries and providers alike would sue medicare it made sense to extend the for a five age immunity or jurisdiction stripping provision from social security act   jurisdiction over the medicaid act claims then just to be clear your position would be that we could then review the regulation without reaching the news about jurisdiction under the medicare  and presumably under the under under your view we could either as a court if we agreed with you i'm not saying that we do that there is jurisdiction over the medicaid act claims we could either ourselves in the st instance form that review or or a man to the district court to perform that review now my question is my further question and specifically authorizes a variety of other professions without mentioning nurses or complaint responses why doesn't that suggest that there are in fact two distinct and time that the conference committee decided to take up the language in g two he wanted it had before it the status quo where there was no requirement discretion was brought to the states a house recommendation that all surveys include registered nurses and a senate amendment that would do what the government argues here limit register nurses to those annual survey and the conference adopted the house language to require nurses on all the fact here there's no inconsistency g for says that a special investigative team could be put together permissive and it could could include appropriate health care professionals why is there no conflict three reasons one it does not say there can't be a registered nurse on certain lines in fact two it says appropriate health care professionals and a registered nurse is for a survey an appropriate health care professional and the rd reason is that the investigative team what's governed by g four is much broader than surveys the secretary's rule with forty two c f r forty eight triolet that explain when a complaint investigation needs to trigger a survey and it's only when a survey and a survey alone can determine whether deficiency exist in those cases this investigation team under g four would launch a survey and if the team didn't include registered nurses the standing member would include a registered nurse in the survey team extent with t subsection it does in a few different ways and g two in particular is at times referred to as a subsection and at other times as a paragraph so given that why shouldn't we conclude that the phrase under this subsection is at least ambiguous because the supreme court in science rubin southwest general coons and an arab anti discrimination committee so five times over has explained that  which is that when a trauma is used without a further qualification something else and parent medical that follows it refers to all the section or hear the subsection to use the term the southwest general a at the administrative level we know what would happen because in the record a joint appendix to sixty nine dollars you have the results when al gone before the final rule contested a survey without a registered nurse and the highest administrative level the secretary said that question was irrelevant to determinations and it would be irrelevant relevant again if the ministry of libel but so too according to the government and all  briefing to date that we've been able to find and every circuit that's reached this question it would be irrelevant to a decision under four o five g b or under the sea m p statute for the circuits out of the way that's been  making it not an initial determination specific survey findings at their high enough level like an immediate jeopardy finding and specific and forstmann actions are the only things that can trigger the administrative review process i would note though that statute made those regulations illegal in those cases even though you had a dual or medicaid only participant challenging and seven that circumstance us where you have two statutes that say the same quiet in this particular circumstance but what the supreme court said that what for five each means and how it should be interpreted the arising under clause it's where the standing and  arises under a particular act that's how you determine whether it's medicare or medicaid show and those in those those cases from the supreme court illinois council bringer and selfie had are more recent than even some of these later earlier decision applying that past would be and where a whole is a medicaid regulated home they would have standing to bring a medicaid challenging basis and to the extent they also are medicare home and are challenging under supply so at the end of the day these policy argument as a matter of doctrine cannot take the court to the position that some of those cases so those cases don't threaten the federal courts in the federal government in the same way in the medicaid program as they do in the medicare program which is another reason why congress may have included four or five agents of security good morning and may please the court christopher totally from the u s attorney's office on behalf of the government the district court correctly held that it lacked jurisdiction over plaintiff claims we've been discussing some of the reasons for that already during this argument the plaintiff here are duly participating facilities they participate in medicare and medicaid and as a result this challenge to h h s this final rule is subject to medicare act clean channeling provision statutory and regulatory bases for finding that the claim channelling provision applies here the medicare medicaid act impose common certification in quality of care or fire me to understand facilities there are very few differences between them and their limited really to kind of state pacific issues or influences where medicaid covers individuals who would not otherwise be covered by medicare moreover when the secretary find the du certified facility isn't in compliance with any of these requirements its authority is to impose remedies under both the medicare and medicaid acts and the regulations provide that the appeals procedures for reviewing determinations by the secretary apply to both participation in the medicare program and the medicaid program are the same procedures for all of these reasons as well as for the policy reason that finding otherwise would allow duly participating facilities to essentially plead their way out of medicare act claim channeling provision it's proper and situation such as this where a claim is certainly not medicaid specific but is what is common to both medicare and medicaid brought by do we participate in facilities to find that the claims handling provision applies and once those provisions apply it's clear under illinois counsel and the michigan academy decision that that this was a situation where the plaintiffs were required to per spring that claim to the secretary before it could be brought in the district court there's the no review exception put simply doesn't apply because there is no there is no question that notwithstanding the plaintiff's ability to obtain the relief they seek at the administrative level once those administrative proceedings proceedings were completed they were free to come into district court at that point and make the arguments that they are attempting to make here so for all of those reasons the court should affirm the district court's judgment on grounds and for that reason not reach the merits if the court does reach them does reach the merits and determined that it would adjudicate those rather than sending it back to the district  court the final rule here is entitled to chevron deference the language of the statute and begin list at best and the interpretation set forth in the final rule is reasonable in light of the language of the statute and the statutes your argument i take it is that you're asking mr and her based on out of circuit case law based on essentially a policy consideration that the medicaid act should also in court these provisions is a fair it's it's more than just a policy consideration your honor it's inherent in the way the medicare and medicaid act interact with one another particularly with respect to do we participate in facilities the challenge here is to a final rule d that interprets and govern statute concerning surveys and investigations and those surveys and investigations aren't art split up into medicare and medicaid those are the statutes that are going to govern surveys and investigations for duly participating facilities and authorize the secretary to take action under both medicare and medicaid where there's a finding excuse me   applicable statutes and regulations feared read a situation where you don't need to substitute judgement cathedral rock actually knowledge is that when you have a claim that was a pure medicaid claim or a pure state medicaid claim that the jurisdiction telling or that the clean channel provision in the medicare act wouldn't apply but but to the argument and undoubtedly the medicaid act doesn't have the same specific provisions but the argument is still grounded in the statute in so far as particularly for duly participating facilities there is no distinction between the medicare act and the medicaid act and what they what they require the ways in which the secretary of valuate compliance with those requirements and the ways in which the secretary can impose remedies or relief as a result of the violations of those requirements for that reason that plainly straddle both medicare act and the medicaid act to apply those quaint channelling provisions consistent with horrified g h and illinois council teaching that all claims arising under the medicare act must be that do you have can you address that your honor i to the extent that it could be that they're they're grounded in earlier versions of the medicaid act it's it seems unclear at best to me expressively not only grounds its holding in the policy consideration but also points to the statutory regulatory overlap of the medicare medicaid act as reasons why for duly participating understand with respect to the jurisdiction over medicare act claims if you're right that the illegal composition of a survey team is is and is not a basis for setting aside any of the penalties why would a reviewing court ever reach the issue and if it wouldn't just be purely advisory your honor i'd play this out if there were if there were a if there were penalties that that were imposed and and the nursing center then came into  court challenging those penalties certainly under under the at the administrative stage h h s has has suggested that the improper composition would not be sufficient ground s for for tampering with an otherwise valid finding but i'm not sure why or how the district court would be balanced by that saying by that same reasoning if if they were to fly and if the district court were to find that as a matter of the plain language of the statute as plainest argued here that whenever you have an investigation there's a you need to have a registered nurse on it and that as a was an improper agency action to impose the penalties that were imposed you know without obviously prejudice thing whatever future hypothetical district court would do it would seem that that  more specifically and you give me your best authority supporting the notion that congress intended to delegate interpretation of this word subsection to h honor as i as i stand here today i don't have i don't have already for for that proposition respectfully i think that the government's argument that chevron's step one don't don't fully turn on the definition of the word subsection but but to the extent that that is relevant and we do think it's relevant i don't think it's really a matter of interpretation that it's just kind of plain from the face of the statute in the different ways in which it uses the term subsection and then with respect to g to use interchangeably subsection in paragraph that the language of the statute is simply some specific thing at all times but that here subsection is used different ways to refer to different parts of the hierarchy of the statute in such a way that it's not sufficient to say that the use of subsection in g two applies across the board to all of the components of some sections that's particularly true again because g four has different language about the composition of investigation team it allows for a level of flexibility in terms of the personnel that that too does not necessarily do and there's good reason for that and i guess this leads into chevron step two which is that when you're talking about a specific complaint that triggers an investigation that could be for a whole number of things both medical and non medical and what the states need is the flexibility to compose a team that's going to have the relevant expertise to carry out that investigation and that's what  jurisdiction over the medicaid act claims would you agree then we could review the regulation without reaching the issue of our jurisdiction of the medicare  if the court were to find jurisdiction i suspect yes your honor i don't think there would be any barrier to to to that inquiry under the medicaid thank you judge lawyer apply to the vast majority of nursing facilities i believe again that that would be correct but it would again it would it would apply to claims that can be said to arise under the medicare act if either rock itself acknowledges that at times there are going to be overlap between the medicare act and the medicaid act and the obligations that they impose but there are instances where where medicaid particularly like state specific legal issues or you know concerning individuals who are covered by medicaid but not by necessarily you know sufficiently grounded in the intricacies of medicaid to know when those type of claims later ice but that sort of a problem because much of this it seems to me  rules and obligations imposed by state or that deal with individuals who are covered by medicaid but are not covered by medicare and those would be those would be situations where a claim it would be even even with a duly participating facility i think that the outcome there would be that that you're talking about a medically claim that's clearly not what's happening here because we're talking about statutes governing surveys  investigations that that are applicable to both medicare and medicaid and that authorize the secretary to take actions under both medicare and medicaid  circumstances what what might make it difficult in terms of individual claims and this is kind of i guess where your hypothetical crosses paths with the situation here is that again when when when the secretary undertakes surveys for investigates certain complaints those those arise under both medicare and medicaid and they authorize the secretary to take action to remedy the problem and deficiencies under both medicare and well if you have a nursing facility let's say it's just five percent of the nursing facilities that are purely medicaid filippi they're not governed by the medicare so i i don't see what the basis would be for for klein the claim channelling provisions there but if it's a duly participating going to be investigated and evaluated by the secretary under both statutes and that are subject to final determinations of the secretary basis for any rule other than the one we propose for the medicaid act because asking questions about whether facilities are duly eligible whether the statutory denecke or predominant are are questions that are on include in the statutory medicaid covers the entire long term stay finally keep in mind that there is not a parade of horribles that under the medicaid challenge we're only talking about will making administrative exhaustion will continue to apply as p negative like there was with the burn in the avalon case poses real risks they are the corrective action the remedy was worse than the diseases they l j found and changed to ninety two dollars of the joint appendix it was counterproductive and caused the residents to suffer even worse if that happens today that's why congress held the government to the same professionalism standards as the homes to have registered nurses and the final rule directly contradicts  blue brief of page twenty one in rosewood m s health care jewish home the government has said repeatedly to other circuits and whine that illegality in the survey process doesn't affect the outcome of four or five  cause of action so this would be a change in circuit excuse me in law throughout the country and in the government's position it would in effect the medicaid act challenge this is no different than illinois counsel where the supreme court said the medicare act honor and most what that means is the initial determination that a reviewable like survey results are subject to normal procedures of finality ripeness exhaustion by going to an  thank you thank you mr feldman thank you mr connelly for you are very strong advocates saying the court will reserve decision will hear the next case on the calendar in united states versus dickens in cruise dickens and then that and then the schneider will come next thank you judge judge mr dixon's takes the position that the plain error rule applies to both issues that are raised by him on appeal concerning the st case that he requested the court find that the superseding indictment that he was convicted count one of the can superseding indictment that he was convicted under was witnesses ever being in possession of a quantity of cocaine in excess of twenty eight grams we do sir that the situation is one in which the court should have or emotion should have been directed to the superseding indictment concerning the aggregate weight argument that was being made by the government in their case there was no evidence at trial that would have suggested that mr dickens him self was personally responsible for an aggregate weight or a weight in x or an individual weight in excess of twenty grams and the government's argument to that end was an   nd argument judge on the nd argument the government to government seems to take the position that the errant argued in that situation is wait and it is one where the jury verdict form when it was compiled contained an inherent defect that defect wasn't recognized by the court wasn't recognized by the prosecutor was a recognized by defense counsel at the time the fact that it was recognized does not mean that the error wasn't there and the error was one in that question one b concerning mr dickens in question to be concerning mr cruz improperly suggested that the controlled substance there was testimony as by various witnesses as to the presence of cocaine base in their possession but there was also evidence throughout the course of the trial of other drugs being in various other of the co witnesses are i'm sorry the cooperated witnesses were in possession consuming and using drugs for their own purposes which might not have been  drugs that could be attributed to the conspiracy that was being alleged against mr dickens and mr cruz thank you judge park just quickly following up on that is foundation of the conspiracy and when the question number one asks if there was a conspiracy involving the controlled substance and then question number two suggests that the controlled substance was cocaine base i think that takes away from the jury's role to decide whether or not cocaine base was in fact part of the conspiracy because the decision has been made for them or suggested to them by the trial court thank you this is this is judge kat possession with intent to distribute judge i take your point concerning an argument and the defendant position would be one to the fact that he is asserting that he was never in direct possession of any of these  never found to be in direct possession of any of the alleged cocaine base and that there is no individual instance of him being in possession of more than twenty eight grams and that when there is no certainty that the aggregate weight claimed to have been possessed by each one of the individual coke conspirators or cooperated witnesses can be directly attributed to him he shouldn't be there should not be a finding that he didn't be attributed with an aggregate weight in excess of twenty grams thank you thank you  protected time if the court would like to ask me questions before then i'd like to focus as well on the issue of the jury verdict form the sify claim that my client was denied his right to have the jury determined drug and i'd like to point out from the get go that the government in essence concede that this was error it says it would have been preferable for the jury verdict form t  st require the jury to identify the controlled substance involved but it's not a question of preference the defendant has a th and the th amendment right to have the jury not the judge determine the drug  beyond a reasonable doubt because that fact increases the penalty for the crime the government goes on that well it's no big deal because crack was the only drug alleged to have been involved but as mr crocheting pointed out there was evidence of other drugs introduced as trial and i'd like to point out it wasn't just evidence of witnesses or co s using other drugs it was the dealing and trading of their drugs there was evidence of that trial for example ms rose area testified about giving my client two perc drugs were involved in this conspiracy and for the court to take that away from the jury was playing error judge lawyer snyder thank you very much  as i recall the government closing argument was focused on crack cocaine however the argument of my client in closing did deal with those other cocaine and the bickley made the point that cocaine is not crack so although the government was focused on crack cocaine it was controverted as trial that that was thanks the government also argued and judge heard your earlier question alluded to that if the jury didn't believe crack was involved they could have just answered the contemplated question the problem with that is that saying someone conspired to distribute less than twenty eight grams of crack is  professionally different thing than saying they did not conspire to distribute crack at all and you're the jury was not given that option of saying no it wasn't crack the jury clearly spelled out that my client was guilty of a drug conspiracy but the next step is what was the drug involved in that conspiracy was taken away from i'm not sure i understand is your question about birds asking the jury what drug was involved it seems like your complaint is that the the the question conflated two issues and i guess my hypothetical is what if it just identified that there were two issues by saying one and two that would have been fine if the jury  to i guess i don't i'm not understanding your question i'm sorry if it had said number one was crack cocaine involved and challenges would you have mounted to the use of your prior conviction given that as i understand it you are and correct me if i'm wrong europe recruit precluded under section eight hundred and fifty one ephraim challenging so we had no incentive to object to anything in the pre sentence report because mr cruz's sentence was driven entirely by the fact that there was a mandatory  minimum here so the fact that he didn't object or challenge the prior in the p s r is really not compelling here and you are correct that after a certain period of time you can't challenge the validity of a prior conviction you can however challenge any facts in that prior  so you know that if they're not i'm sorry go ahead finish your sentence i was always going to say if it doesn't fit within the definition you could challenge it on that basis this is not really new you could challenge it on that but that then leads to the question if there were no specific challenges that you were evicted from raising how are you prejudiced by the district court's not following the procedures in section a fifty one well we don't know whether there were specific things mr cruz could have challenge because this colloquy was never conducted and so he never had the opportunity to say to the court oh i do challenge that prior conviction and i want to put the government to its proof and he never had the opportunity to consult with his lawyer below and and discuss what the parameters w that's correct but here's the problem is that because the judge  record necessarily doesn't have anything about this that we can show prejudice but in that case if you said well you need to show prejudice in that circumstance then thank you we will now hear from mr silver thank your honour's with respect to the verdict form i do maintain the government maintains that the objection to it is waived this is not a case where the court used a verdict form and nobody raised an objection which would result in a error analysis this is a situation where the court had a conference with counsel both counsel and government counsel and part of that conference was directed to formulating this verdict form particularly formulation of the verdict form as well as indicating that neither had an objection to it as changed so we do think it's waived to the extent the court will apply plain er analysis to to any defect that might see in the verdict form i think it's it's it's telling st of all that something is basic as what drug was involved in the conspiracy that question didn't occur to anybody in the formulation of the verdict form because there really was only one drug charged in this conspiracy also the defendants don't challenge on appeal the sufficiency of the evidence against them so no one is saying that the evidence didn't establish that more than twenty grams of cocaine base was involved in the conspiracy to that extent if there were other drugs involved in the conspiracy which is a point the government does not concede it would not have affected the sentence that you either of these defend so they don't challenge the jury's answer to the st question yes they were involved in a drug conspiracy and they don't challenge on appeal here the fact that's the proof established they were involved with more than twenty grams of other drugs that was presented at trial and i just wonder if you could address that there was evidence of other drugs at trial it's not clear to me i and i i don't maintain that those drugs were part of this conspiracy particularly because in this conspiracy cruz was the source of supply and all he supplied was cocaine base no powder cocaine whether people were using were distributing percocet has nothing to do with the conspiracy that was charged here so yes there was evidence of other drugs i do believe there's also evidence that cocaine powder cocaine was given by cruz to at least one other individual so a distribution but that appears not to be a part of the conspiracy that was charged here he could not have gotten that powder cocaine at least as far as the evidence is concerned the trial from cruise because all the cruise provided was cocaine based so yes i don't contest that there's evidence of other drugs involved most of it is you know distributed by people other than cruise issues me other than dickens but i do believe but as i say it's not it was not prejudicial to the defendants on the circumstances of this case because they don't concede they don't contest that they were involved in a drug conspiracy and they don't confess that that conspiracy involved at least twenty grams of crack cocaine with respect to the discussion about challenging the felony conviction relied upon to enhanced cruises a sentenced obviously we can see the district court did not follow the procedure it should have but i think it's a matter of bread and butter practice routine  in a multitude of criminal prosecutions where prior convictions convictions are challenged whether they are used to enhance a statutory minimum or not there was nothing about the procedures that occurred in the district court that prevented crews from raising an objection if he had one and in that respect i disagree with mr nader about it's not compelling that or a judge doesn't ask a question necessitated by rule levon and nonetheless the defendant still has to show prejudice and the prejudice that context is i would  have not entered my guilty plea and this is similar to the mere fact that the judge didn't ask the question did nothing to preclude the defendant from raising an objection and certainly the fact that no objection is raised to this time to the prior conviction shows that the district cruz has not established that prejudice under planar review must the court has any other questions i'm happy to rely on my error under the facts of this case if there was error which we don't concede but if there was an error it was not plain because the only drug alleged to have been involved in the conspiracy was cocaine base and there was no prejudice to the defendants under plainer review because they concede that the jury correctly determined they were involved in a drug conspiracy and they're only arguing about which drug which is a sentencing matter they don't challenge the evidence establishing their involvement in more than twenty grams of crack cocaine which drove the sentence here even if there were other drugs involved it would not have affected the sentence and finally in light of the way the case was charged and everyone approached it the defendants can establish that this affects the fairness two minutes of uninterrupted argument then the judges will each ask you a question you will have one minute  meet his burden of showing that he had a medically determinable mental impairment during the relevant period as we discussed in the brief there is no psychiatric diagnosis from  the regulations require they'll just finding on this issue is supported by dr mooney's and mr score it has no cognitive or psychiatric diagnosis dr mooney's stated in no uncertain terms that mr score did not have mental illness that affected his ability to function the step to finding is also supported by the lack of evidence of psychiatric treatment or medication during the relevant period importantly despite the lack of evidence of the mental impairment adequately and properly develop the record with regard to his alleged mental health treatment there were multiple requests sent to mr egnor who are believed was a therapist but the agency received no response similarly a request for dr white a state agency review position and then we have an opinion from dr seuss board certified orthopedic surgeon both of these opinion support the residual question of capacity and   file a subsequent claim for benefits for a later period yes your honor that exactly correct with regard to the steps impairment mr score would be able to file another claim for benefit and in fact agency records indicate that he has indeed file a subsequent application thank you