may please the court my name is james just a rino and i represent dr blum this should be a straightforward case of statutory construction the statute in this case says that an individual is entitled to judicial review if more than one thousand dollars is controversy dr bloom is an individual and more than one thousand dollars that is at stake that should be the end of the inquiry nothing in the medicare act changed how district courts determine the amount in controversy when deciding their own jurisdiction dr blum sought to just review of three claims that are for more than three thousand one hundred dollars as a matter of law that establish the jurisdiction of the district court to resolve all three claims because they frequently is not there is a canon that points in the opposite direction from the one that relies on but here you have a statute that creates a monetary amount threshold for two different things one of them is administrative review and the other is access to court for for judicial review and then statute explicitly says that in the case of the administrative review there can be aggregation under certain circumstances that are defined and says nothing about such aggravate aggregation but with respect to judicial review isn't the fair inference of that  review but we're not doing that for judicial review why isn't that the the the apparent meaning of the statute that were specially we would say no at that how the district courts determine the amount of controversy is a matter that's but then long determine the amount of controversy just add up all the claims so when congress was legislating for the medicare act it was doing it with against the backdrop of how litigation and during amounts and controversy in district courts works so it didn't have to say anything more in the medicare act to make sure that the regular rules of civil procedure would apply to digital review similarly your honor the in the medicare act it doesn't say where allowing the summary judgment will fifty six proceedings in federal court it doesn't need to say that so in order for the federal rules of civil procedure to apply every act does not have to express lane court right the rules of some procedure or repeat them itself so the absence of saying anything about again from our perspective is exactly backwards congress is relying on the regular rules of how federal courts work when an act of this and with that backdrop your next question is ok we know how to aggregate and or determine the amount of controversy in a federal district court now in creating a new act it's going to for the  two specific ways one of which across as different individuals mandating that the secretary do it the secretary has no option opportune option but to do it so again to read the statute the way we say again from the district court's perspective he believed that if you construed individual that's plain ordinary meaning it would render some portion of the statutes a purpose in again in our view that's exactly wrong the secretary concedes in their brief i believe on page twenty eight dollars of their brief that as used in the statute the aggregation provisions you're referring to refer only to hearings or appeals before the secretary and say nothing about how you would calculate the amount of controversy in a district in your argument relies a lot on the individual and the provision individual is also used with reference to the secretary and the limited aggregation that is required under the statute for the secretary so i don't think the word individual signals to us that we should anything in particular about aggregation are not an aggregation we'd have statute makes it non discretionary the meaning is the secretary must allow aggregation to meet the one hundred dollars limit but it doesn't say anything about how you would calculated if you in any way sort of almost like repeal by implication of based on legislative history or in the else why the word aggregate was eliminated in two thousand and no legislative history was was cited for why that why the change obvious there's our series of stylistic changes if you look into the into correct and if i may we would we would say in fact the word aggregation here is probably not the correct word for use in just from a district court perspective and why you have made your primary argument this one because if you are secondary argument prevails and and i for the moment can't see any reason why it shouldn't if your secondary argument that supplemental jurisdiction applies then your st argument which is what we've been talking about all along becomes moot because you can't review of all three of the claims so are we arguing i'm wondering whether we're arguing about something that really has no effect on this case if supplemental jurisdiction applies and i haven't heard any emphasis on what seems to me to be the tougher of your two arguments and from our perspective a leash on it we believe the court should just read the statute and find the normal rules of statutory construction so hence the word individuals not in the us and the district court certainly didn't find that it was i hope in the course of your argument you dress like your adversary the supplemental jurisdiction issue because i for one need to be persuaded why supplemental through restrictions may please the court i will address that you honor my name is melissa rinaldo i'm an assistant united states attorney from the district of vermont and i represent the secretary of health and human services in this appeal i'll get right to it your honor supplemental jurisdiction over the claims in this case that failed to meet the mounting controversy requirement is prohibited because the overall scheme of the special claims driven complex review process embodied in the medicare act expressly precludes judicial review of any a figure of one hundred and eighty five million cape claims a year so in order for this huge agency with this huge number of claims to deal with these without overburdening the courts the court that is the issue that has been raised and the but i think that the statute itself if you look at the statue itself you do have to get to the mount controversy requirement because that amount in controversy is what establishes the whether or not and  a claimant can walk in the court door if the court if the claimant doesn't get to get in the courthouse door there is no reason to apply or determine whether or not supplement honor and in this case so if the court does go forward and review supplemental jurisdiction it has been raised and so certainly the court has to address it supplemental jurisdiction is precluded in this case for several reasons st i just precluded only if it's expressly provided otherwise by federal statutes so how does the how does the act here expressly provide against the exercise of supplemental jurisdiction once you have a a a claim that meets the threshold in this court in hanbury versus thomson expressly said with respect to supplemental jurisdiction that there is no requirement that congress must make a specific reference to section one thousand three hundred and sixty seven to limit its reach so just like this statute the medicare statute does not have to say oh and by the way supplemental jurisdiction is not allowed here it doesn't the entire process of this claims driven review establishes that the amount in controversy is what governs jurisdiction in this case and not supplemental jurisdiction so it's this is not a case where and there were several cases that the district court cited which are examples of the fact that a an express statement of supplemental jurisdiction is not a  claims under the talker act of an adverse hearing decision now the court went on to say that where the medicare statute conspicuously fails to authorize further review for determination of the amount of the part b award in the context of the statutes precisely drawn provisions this omission provides persuasive evidence that congress deliberately intended to foreclose further review of such claims so the erica case was a case that deals with supplemental jurisdiction and it deals with supplemental jurisdiction in the context of the medicare statute now the cases that my opponent cites to with respect to supplemental jurisdiction do not involve the medicare act and that is what's critical in this case is we need to look at the act itself and see what the act has provides with respect to the claims which and if i'm right about that how could that possibly be but anyway i believe judge crawford is not the only court in the country that has dealt with the underlying substantive decision your question is asking about whether he is the only that's the only district court in the country that has ruled on this precise issue of supplemental jurisdiction under the medicare act me two seconds here your honor i believe i think it's unusual perhaps because no one has ever tried to bootstrap claims into the court which don't meet the amount in controversy which are so blatantly don't meet the requirements for judicial review and supplemental jurisdiction is being you grasped that in order to try to get these two claims into court well not necessarily i mean i think that supplemental jurisdiction is used in different contexts your honor this is particularly with respect to the medicare act the statutes that might pose in council refers to with respect to use  claims and that is traditionally what supplemental jurisdiction is used for and correct but again those congress provide standard of jurisdiction is provided and so these cases that are otherwise relied upon for supplemental jurisdiction are in a political ball in this case when jurisdiction is expressly provided by the medicare act i see no i just seems it doesn't seem to me to make perfect sense that the statute works this way maybe you're right this is how it works but as your adversary points out in his briefing doesn't it in effect because these claims could have been aggregated before the agency that i suspect you have to anticipate negative decisions and asked for delays before the agency so as to aggregate a set of clearly related claims when sense would seem to make more sense that the agency would hope that they be aggregated well i think that in the end require them to be aggregated the agency doesn't always know when a claimant is bringing claims a claimant knows when they're bringing claims the claimant knows for example mr dr blum is repeatedly requesting coverage for his continuous glucose monitor and supplies he continuously knows that these are coming forward the in mr bloom's case except for one occasion he did not list any other claims but he attached a list of all the affirmative decisions the grants of benefits that he had before him but he did not aggregate these claims he did not try to aggregate these claims and there are instructions that are given to the claimant that tell them if you if you have related claims let us know about them and so it is up to the claimant who knows that he's got further claims coming in order to bring them together and focus the court and the court the right the agency will give x ten sions for good cause and that is good cause if they want to aggregate the claims but they need to do that at the administrative level and they can wait until they get to the district court level thereby making the all the administrative regulations of the government have a view of just to go back to the initial issue test to interpretation of the act instructions do you have a view of the legislative history particularly the legislative history from nine hundred and eighty six to two thousand i believe seems to me i mean i've individual would be able to request judicial review of the secretary's final decision aggregation of things to meet these thresholds would be permitted that's the history maybe that explains why but that doesn't fully explain why the leader of the wor individual is mistaken that again back to the idea of looking at this medicare statute as a whole it divorces the word individual from the statutory language and specifically section four  g says that any individual after a final decision may obtain review of such decision so it's not the individual who is able to accumulate any number of claims the statute specifically discuss the secretary's final decision that's what subject to review not the individual each individual final decision of the secretaries in title two separate request for review has a final decision has its own exhaustion acquirements has its own administrative record and it's subject to its own deadlines for filing requests so each individual decision as i said this is a case is a replete that talk about medicare say that this is a claims driven statute so to ignore the claims and say that the individual can do whatever they want is just misses the point and misconstrues the entire statute thank you if i may i'll just maybe i'll go backwards on some of the points that i just heard st the the in for five g it does say a final decision in this case all three decisions are final decisions so it really doesn't add anything to the inquiry they are all there are three final decisions are being addressed  with regard to whether or not dr blum was required for had to aggregate his claims before the secretary again the provision talks about aggregation to get a hearing or an appeal before the secretary where the amount of controversy is one hundred dollars all three of these claims were for more than out in terms of one other aspect here it was mention the papers as guard to rule one hundred and eighty one idea that is that you don't get inconsistent results to avoid inconsistent results so for example in this case as a result of this as a result of the denial of jurisdiction here dr blum has  n final decisions saying absolutely a c g m is durable medical quit and he has to or the secretary has concluded it's not a medical not medical equipment so again the whole purpose of worley team i noticed in the we provided the court a copy of the smith versus burial case decided by the supreme court in may and i know one point that they have there was the strong presumption of judicial review i did hear a little bit about the diversity statute and the federal question one thousand three hundred and thirty one with regard to supplemental jurisdiction and i know i think in some ways from the timing perspective because the requirement to file a federal suit within sixty days you can see that the decisions from the secretary may come out at any different at any time and not necessarily in any order so a litigant would and eighty eight dollars right so you have docked what again it would have to either be able to have the resources another going on medicare would have to have the resources to fund that litigation or find essentially pro bono counsel to handle the case so the idea that you have such an interested party be able to do that all the way through i think is relatively unusual and then on top of that they would have to get the timing right for this vaccine or two but i did i did want to say particularly in this case dr blum specifically requested because the six day limit requested an extension of the time in the sixty days to file suit so i know we've cited in the record i know what record the a fifty eight b a sixty for every example and be a seventy six dr specifically requested the secretary extend the sixty days and he said specifically so that i can meet the federal mounting controversy so i can write down the pike from dr bloom's view this is operating exactly as it would in a diversity context in the diversity context of course the statute says civil actions here we contend it just says the word individual right and just like in the diversity context as long as you've got one that means the amount of controversy in fact all of them the atom up but the fact that you have more smaller claims that are add on to the amount of controversy doesn't affect anything likewise here he's got one claim that is indisputed it meets the amount of controversy he has two other claims that also add add on to the math value but it doesn't just take away from the grant of original jurisdiction which the district court found in this case so from the just when the at the district court the district court held as far as i can tell just the sheer existence of the medicare act meant that the supplemental jurisdiction statute could apply but as your honor pointed out the supplemental jurisdiction statute requires that the it be expressly provided so from our perspective the district court just didn't apply and given a meaning to the words expressly provided has to be an express provision and there is not the sheer existence of the medicare act doesn't qualify in that regard and  i know we cited a number of cases where not in the medicare context but were supplemental jurisdiction was applied to other to allow supplemental jurisdiction to apply to other federal claims i know the exxon case for example from the supreme court had of the same key is your controversy so to the extent that the that the tagalong cases involve different issues the district judge could just say no and and in and in  bases of the district judge can give for turning down cases or i'm not sure anywhere where where as in this case they seem to be exactly the same and the and the the decision which back to the admitted answer your question in this particular case there are reasons why the exception to supplemental jurisdiction would not apply as well so i understand that i for a district court using its discretion to decline jurisdiction exercise of supplemental jurisdiction and if that in this particular case the that should have or would have been done because it judicially khana me does not support the allowance of the court a district court having to or any district court opening the floodgates to multiple decisions like this which with sep administrative records you'll notice in this case there are three administrative record it's before this court and that's because there are three separate final decisions of the secretary and those are not identical  does but these the close these administrative records are not identical they include different different dates of decisions different kinds of decisions different evidence that was submitted at the at the administrative level and so he in medicare refused the supplemental jurisdiction and the medicare act sets this admit amounting controversy requirement it also exists exhaustion requirements it also sets deadline time limit deadlines as requirements these are all requirements to get into district court to get your support jurisdiction and so if the you're going to say well we're not going to worry about the mountain to the inclusion under supplemental not that not that you would be able to argue that the district judge should take out of of circumstances that distinguished the title long claims from the from the government's position is that the medicare statute itself precludes application of supplemental jurisdiction very coming back very quickly to the questions that were asked so yes i think the claim that there is compelling circumstances just because there's another statute is not the kind of compelling circumstance that was contemplated by the exception to rule and i do think if the court  begins to examine the supplemental jurisdiction issue i think under this court's decision and cats and just as your honor was indicating the court would have to examine four factors right he would have to examine whether or not he would promote me convenience fairness or if he was not going to  jurisdiction economy convenience vendors or comedy and he could make that examination conceivably might your argument that medicare recipient just doesn't have any incentive to aggregate before the agency as long as this claim is less than a one hundred dollars and just doesn't know that he should aggregate it was your client unaware that he might need to aggregate his claims for the agency in order to bring them in district court i would say coming back to your original point about i would i would say cl at the time that the original claims were filed if there are more than one hundred dollars he knows that he will have an opportunity for for a hearing in an appeal but what he won't know and can't predict is which of those claims ultimately might reach a district court so again as we say in this case dr blum has at this point eleven final the final distance including one from a district court finding that c g m is durable medical equipment but at the time he filed the original claims he couldn't know which ones were going to go through that process so again from the prefer specter of a statute that's trying to deal with elderly ill and frequently both laypeople for them to try to strategize as an attorney seems more than is contemplated by the medicare act it's designed to