payment of the government's medical claims throughout the grieving the government keeps saying correctly that they can sue the injured party under the federal medical care recovery act and that's true but it's not relevant six as the united states points out but we have a deck of cards or a judgment case here that's right and there's this case expose the government  financial responsibility not only or could result in any way in compelling the payment of damages there is no way is the plaintiffs seeking money from the united states simply a declaration that the united states is not entitled to her money are you conceding are you making a formal concession that the government is entitled to  good luck as an indemnity tour even though it's not entitled to sue or is an injured party yeah i am and i want to talk about that for you talk about that let me ask you about something that was on my mind as i understand it the threat the government makes is to sue state farm and the problem the good luck has is she has promised to hold state farm harmless that's correct so good luck i seeking a declaratory judgment that would establish that the government cannot sue state farm is that right well she's seeking a declaratory judgment that the government has no right at the time i think the suit was brought it was against state farm but she's really seeking a right that protects her from any claim the government may have and that whatever it was just the record i got that wrong that's correct that that was the status of the record at the time the suit was brought but it's also true on the record to look at are we supposed to look at the status of the record at the time the suit was brought are we supposed to look at something else where the record hasn't changed your honor because at the time the suit was brought why are you telling me all this other stuff that's not in the record it's in the record she has indemnified plainly she had indemnified state farm that's in the record well i thought she had got indemnify them because the government had not sue them yet as the problem was that she had promised to indemnify them for any damages that they were required to pay the government she thought i understood the case and now i don't but because you said the status at the time the suit was filed is different now and i can't tell whether you're saying it's materially different well there is one thing that's happened that's three years statute of limitations has run on tort claims and that's pointed out in the pre but it has not run on contract claims and so that is pointed out and by the passage of time that has changed but i would ask the court to look to the line of cases where they are when you have an issue that's likely to recur it's taken us almost three years not just ms good luck and this is not an unusual case this is the everyday case in a personal injury practice we need to get some clarification on the meaning of the federal medical care recovery act and what the rights are the parties farm called upon her to step in there and deal with the united states and she did and that's what she was required to do because of that she has an injury in fact and yes it might be a two step complaint explained why they have no claim and again no action so under the new strait of procedure act we believe she is a party aggrieved and further they could have and that along should have given her standing that's right i think possibly the government could sue her under the contract hearing under the cracker ham case which we cited in our very well she doesn't have a contract to repay the government only has a contract to them to fight a farm so the government has to have a good claim against that farm get into her pocket that's true but because she has assumed the responsibility  contract with state farm whatever the contract may be i believe the government could now proceed directly against her under the statute i hope you'll say otherwise we're going to be standing in the standard if the government actually succeeded state farm and got a judgment against state farm i can see where she her slave harmless agreement would would come  glad you asked that and this is the typical case i mean right now this case was settled with state farm and she's holding the money because she knows that she  i work when you know money to the u s government and you're trying to settle a case you can never get them to respond to letters or compromise on their subrogation claim and so you often just wind up doing a deal with everybody else with a hold harmless agreement that's right that's something what it is yes it is now but what's happened don't answer their mail and no one who answers the phone has any authority and usually that's i know i'm  been an experience i've had some bad experience with certain offices other offices have been wonderful to work with so i don't want to say that but yes we've had a lot of that experience with certain offices the other problem your honor is because of this tang out there we find that we cannot now settle a number of cases which should be settled which are easily settle so what we need and why we're here and why the case is important is we need some clarity on what the rules are what remedies are how we can sort these things out and get it done and i hope that the court won't say this is moot we hope that you will decide on the merits whatever is before you and give us some direction all of us who work in representing the going to tell the secretary council it looks to me as though this isn't just speculative she's got a nickel dime settlement for what would ordinarily be a seven figure case of brain damage  and it looks like the money can't be spent to take care of her until they find out what is the government's going to think well that's based on incorrect legal are the top three is the insurer both she has a duty to hold state farm harmless and they made that agreement without ever contacting the government both state farm and plaintiff counsel knew ours should known that there could be a little carry coverage act means lurking out there and now you're you're you're saying that what i suggested to you was not so you're suggesting it is so but it's their fault i'm saying that they could have alleviated this situation and he's looking for guidance and i'm not sure this is the case that provided them but we could discuss that in the sense that they could have then alleviated the situation by she she just have petitioned preview of an agency action there's no jurisdiction under the a p a either for these reasons first of all she's not suffered a legal wrong because of agency action there no agency action against her here the agency action which does make a demand on the court figures and sure she's not subject to a lawsuit because she has suffered no wrong because of agency action are in action secondly she owns her mind i have a question about that first that you say the party that suffers the state farm not hers she has no standing the agency action doesn't harm her that's correct it seems to me that by analogy to miller cases that has to be wrong the bonding company has standing have because of its duty to  indemnify and it seems like a little girl here it's just like a bonding company in america case now because under the medicare recovery act the united states cannot go against the injured party and if you have a settlement fun our duty to hold them harmless so she is going to be paying for a ward of the state farm and she is going to be paying any judgment that's rendered against state farm maybe that would be a matter of state law under the indemnity clause h defense would be under the medical care recovery act state state farm had an obligation as did her attorney to make sure there were no liens out there lurking under the medical care recovery act and did not act that it may be her fa as you as you argue this is not a fact whether she has standing it may have some bearing on the equities of the situation at a later adjudicatory stage but whether it's her fault that she gets  holding the bag or not what effect standing is whether she gets left holding the bank i believe under the medical care recovery act the fact that the united states cannot go against the injured party does affect her standing and means that there's no injury no agency action against her but a second reason and so so we have standing but no jurisdiction is that which i don't believe she has standing for the reasons i stated also what you've got here claims for money damages but she's not making a claim for money damages she's making a claim that she doesn't want to nickel she just doesn't want money taken from her and that's precisely involves money damages the e p a it's not w she's not seeking money damages she's seeking at the clara tori judgment that she doesn't have to pay money to you she's not seeking money damages from your client i believe your honor that the way that the the case she raised it in a rule fifty nine emotions under this court's cases particularly go van versus mission indians if the allegations on the subject matter jurisdiction do not appear in the  appear at the outset of the case the district court must be dismissed for lack of subject matter jurisdiction she didn't raise it until after the district court had dismissed the case granting the government's motion to dismiss for lack of subject matter jurisdiction she raised in the fifty nine emotions it's too late now there is no jurisdiction here but the fact is that this case is moot and the reason is that the six year statute of limitations does not apply and it does not apply because we do not have a situation here that falls within the park or ham case that case as i said before there was an explicit third party beneficiary clause in the settlement agreement the v a here we don't have that they went ahead and settles dispersed the funds without ever contacting h h s and before h h s makes its claim on state the tortfeasor and insurance of the torture of the poor feet if they settled as you have an effect on the government's right under the federal medical care recovery act for the united states to go against the tortfeasor or the insurance i don't understand what you just said are you are you saying that it's moot because the statute of limitations has run i'm saying it's moot because the three year statute of limitations has run because that applies in this case there's no contract the government's not the beneficiary of a third party in the settlement agreement or he would have a position where you can make a formal concession and stipulation with the government will not to state farm  we explained in our brief could sue the government suit farm it was august of two thousand and four and preparing for this case yesterday i dealt with that and came to the realization that the statu beneficiary right the united states and the united states has no claim again are you prepared to submit a written undertaking that the government considers itself barred and act covenants roxas to as state farm after for the medical the district court was correct there's no jurisdiction under thirteen thirty one there's no jurisdiction of the in addition for all the reasons i've stated there's no jurisdiction under twenty two zero one because that's not an viable before we can make law for the other fifty and if this is going to be mooted why that's the way it is you have to wait now the case well i think there's a violin i thought you were representing with a little girl good luck rather than the other forty nine clients and  court today no we're happy to have this fifty elation and we accept that but at the same time the issues about jurisdiction and there's a body of united states federal law that allows the court to notwith were there was threats nade by the agency and they were reflected in the complaint to make a claim i'm very the uninsured motorists are under insured motorists provisions which are not under the cases but to me it seems like all it's in front of me is the case that's the good luck case in that it seems like if the government's willing to promise to keep its hand out of good luck very small pocket in this very damaged case i would think that would be the end of it and in the these other claims really aren't in this case they may be somewhere out there but the only issue oh but they can still nail us in a different way and now i realize it's to get some law on the books that will help the ninety nine other clients with similar problems and i can understand that but it seems like or the federal medical care recovery act statute which i have been looking out for fifteen years and didn't have not read it carefully given the only issue in this case is was the trial judge correctly through this out i'm sorry right but the question then under subsection any may now sue could not before but now instituting prosecute legal proceedings against the entity responsible for payment or reimbursement