in your honors family bookman on behalf of the planets an appellant i intend to spend all my time this morning at addressing the question of issue waiver whether the hospitals in this case have waived their ability to challenge the ally role to the extent they didn't bring the specific challenges that they're bringing in court in the notice and comment rule making in making that argument you assume that the facts of this case would indicate that the secretary has acted contrary to statute and that a rule has been adopted with no objection and then tell me what the result is doing by the statute or do i apply the rule that is inconsistent trying to see if i understand your question your honor i have a statute that directs the secretary pay the plaintiff five dollars right the secretary is absolute and says will pay the plaintiff three dollars the plaintiff doesn't object to the rule during the rule making isn't my view is that under those circumstances the plaintiff would have the ability to bring its claim directly in court regardless of whether it had raised the claim in the rule making the answer is yes and that's what i'm going to be talking said and i'm going to talking about basically three stages i'm going to talk about what we believe to be the controlling supreme court precedent in this area and that's the simms case i'm going to turn to the ninth circuit precedent and particularly exxon adversarial aviation in sims the court noted that the whole doctrine issue waiver or issue exhaustion is derived from courtroom litigation court litigation where superior courts require issues to be raised a very recent i think in october case that was decided by the fifth circuit inconsistent unfortunate for us was city of seabrook which is one of our favorite cases in this area in which the fifth circuit narrowly defined foursomes one month i know it's i mean i heard your honest discussion of miller just a few minutes ago i think exxon mobil decided one month before har important word but i think it i think the the teaching of the miller case is the lower to the ninth circuit to the panel apply the rationale of the supreme court or at the very least have a meaningful opportunity to  prior to sims coming down again he got well one month timeframe i think that's not a far stretch of the miller case to him to apply it in the situation exxon mobil but let me go look go beyond i think would satisfy an issue ever doctrine which would be applied so the parties never presented to the ninth circuit the question of whether and exxon mobil the question of whether issue waiver ought to be applied to rule making and whether there's a difference between a rule making  the issue is fairly presented to the court and we find through the adversary process and the court has decided after careful analysis rather than through a broad statement principle that's us versus johnson i think that's what i have a very good statement what we perceive the rules of it so i think it's a hard thing but it's a holding that i think consider the key argument at least a few years not to have and looking at the underlying briefs nobody raised the issue so i don't think such a holding ought to be binding towels let me to those cases weren't raised by the parties and exxon mobil and the court obviously didn't didn't didn't discuss that so i don't think we have a fully litigated issue in exxon mobil ok let me move medicare beneficiary who's told by a physician that you need the procedure left learns that two years ago the medicare program adopted a rule that said procedures not covered we won't pay for it nobody objected in the rule making to the procedure that patient would be maybe a court would carve out the exception that you're talking about your honor but i haven't seen that and you can see the way let me ask you this this is isn't this issue when they can come up in distinct ways two categories of cases you can have a case where case in which the issue turns about on whether the agency considered certain kind of evidence statistical evidence data about medical costs and that sort of thing and that that evidence was not offered by party after the rule is made and goes into effect the party then once too often the evidence that seems to me is this case isn't there distinction between those two types of cases that if you had evidence that you think was relevant to the rule you should have offered it when you had the opportunity to says that all of the secretary has to do is to do is make his best guess set up the system respectively so that's the extent he can and so that he would predict that he has a five to six percent range but we don't require retroactive reconciliation or retroactive look understanding question i think is this think the people standing at the base in the traditional article three inquiry and perhaps also credential considerations regarding particular statute so anybody under medicare in this in this particular context the people who would have standing to offer notic the reasons why that rule makes sense just say they were not made by this party that could be a rule your honor we don't think that exxon holds that and this court could adopt that rule it's not a rule that we advocate it's not the rule that's been adopted in other circuits that hypothetical your honor i think the question would be whether there was adequate notice and i think the standards for notice are established i don't believe that it would allow an individual who was born for example after the rulemaking issued to say i wasn't born at that time and i want to come forward and challenge it after the fact i don't believe that would be a valid exception if it were if it were a valid exception it would be that it seems to me understand prince that would he be because of some requirement of noticed that went beyond traditionally understood concepts of n and this in this context but with yourself ok what i'm saying is that an entity i understood your honor's hypothetical to being if there were an entity you came later that entity would be found by the inaction of formed later and they come forward and challenge the rule making up stuff and run it was not raised that that that fact is not distinct as you're also with noticing from an education where oftentimes parties are bound by make two arguments that they did not have noticed one argument is that they did that they did not know the actual figures of the costs to charge ratios that the agency was going to use and they claim that there was a declining trend of cost to charge ratios and  the secretary should have anticipated that as our brief explains however the decline in pasta charge ratios was something of which they were aware at that time are they from aspects of this rule making that they didn't go about until it came until the final conclusion that they  the seventy nine hospitals and to all the other people at that time that that would have precluded their doing so and indeed as i mentioned there's no other argument that effect here with respect to your honest question regarding future created agents none of the hospitals has claimed to be such and if it is indeed which may be true if indeed that raises novel legal issues of not being considered by any prior authority then then we would encourage the court to to not to decide t statutory question the claim was that the agency was misinterpreting the authorizing clean air act statute and so i think in so far as that some other controls which i understand they argue that that's not even though it's a holding in so far as exxon mobil controls right or wrong wise and ones that were jurisdictional if there were jurisdiction of section there's another way of getting around the issue with when it's a particular type of rule as to the wisdom which i think is a very important question the question the suggestion by the other side  bears application and why the course of appeals have applied it including this court to administrate rule making in the reasons have to do with the fact that it's a very costly process and every every year done with a great deal of seeing in this instance seventeen years think they did this eight years it was high nine years was low average era point zero one percent you just seem to be arguing that when the legislative branch or dean doesn't mean a thing to the executive branch right no your honor and there's some control at all they can just willy nilly if they listen everybody who has something to contribute can go against the statute it's a very important point your honor why aren't these hospitals being paid in accordance with what congress directive you've got a very very narrow range within which you can operate one percent of the overstayers and it didn't work out five years in a row once  secretary going to get the message it's his formulation it's based on historical facts instead of existing fact and that's his problem your honor with us starting with the specific and then going to the general the agency failed to anticipate as all of the forty seven hundred comments failed to anticipate the level of decline in costs that occurred during those years that at that exact i mean there's no there's no suggestion that those estimations were accurate but congress mandated not discretionary mandated that the secretary pay based on estimations not based on realities the secretary did and has done the estimations during these years this missions were wrong because money back the secretary always pays based on the estimates and estimates per congress is prescription are often wrong very complicated process and they are often wrong but not any one direction it's just that during that time there were  not allow courts or does not prescribe courts to hear these issues of what's the cost charge ratio what's the cost inflation what would what should they know what experts are right in the first instance that issue in adjudications and rule makings by congress will prescription