have please the court i'm candace jackson counsel for appellant and i would also like to point the court's attention to the fact that i'm a company today in the gallery by dr dorothy calibrate is a long time and distinguished california physician with specialty in allergens and immunology it's not just a professional interest on her part but a deeply personal one having very few children from the medical complications that she now seeks to treat for her patients dr caliber he served as the lay person representative for the aggrieved parties in the administrative proceedings below and i believe has shown an admirable commitment to serving her patients best interests even at great personal financial cost to herself i'd like to begin by addressing the issue of moodiness that was raised  court order from the bench of a before yesterday this case of course arises from challenges to two different local coverage determinations both of which express the c m s contract or policy to never reimburse for the expense of transfer transfer factor  therapies or treatments which dr calibrates have been administering to a group of patients suffering from multiple chemical sensitivity syndromes the administrative record includes two different department appeal retirement date as i think the council i just discovered this week was apparently january one two thousand and twelve there are several reasons however why this case remains a live controversy is not moot and should not be dismissed on that ground first of all just for clarity the c f r that mandates dismissal of a more importantly though this court has held on several occasions that the doctrine of capable of repetition yet evading review is an exception to the  two responses to that so that though one is that this case involves allegations based in the fifth and fourteenth amendments that there  were corrupt or wrongdoing actions along the way raising those kinds of issues along the size raised before the l j or just an appeal they were raised all the way along the administrative process but they outside the administrative record in order to prove that not necessarily we do we do insist that it would have been appropriate for for those kinds of claims to receive the ordinary treatment that any other civil case would have received and that would be some rights of discovery so in that sense there could have been and there could have been and should have been an avenue for some additional evidence at the district court review level at the administrative level both the l j and the da the review levels there were there was not any consideration given to any constitutional or other statutory based argument be their own violations and would potentially warrant their own redress even if you have a d it's related to the l c d in the sense that the conduct complained about occurred during the process the administrator review process and challenge of the l c d s but our contention is that those allegations be because there was again there because this was terminated on summary judgment with no right of this but you didn't explain what you didn't claim them ages you didn't have a claim for damages below so how could a claim for damages keep the case retirement of the l c d under under case law falls within the language that says it's retired completely at the discretion and voluntary choice of of the defendant can it's entirely within the defendant's control to and that's not that's not what's happened in this in this very case even today they had an initial l c d policy in two thousand and four they withdrew voluntarily that ended the first administrative proceeding at the same parties  were involved in and start over when the agency then implemented a new l c d same substance just a year after dismissal of the first in the strait of proceeding so it's clear that this is that this is an issue that i'm moving as though in that case i think it is very much on point because there the court said that even though the government had withdrawn and ceased issuing its quotas for the  tribe to do its whaling for the year the anderson court said the court the government is free to implement that policy again of any time importantly on the issue of mutinous is that the burden of movements belongs on the party seeking to enforce it there is no evidence in the record at all here that the government the agency won't simply reimplement the same policy in the history of the was it was done by a private carrier to whom the claim was submitted what does that have to do with the government doing another regulation it's issued by the c m s contractor that's true just yeah unfortunately the h h s attorney who i was when i came on board this case who i was most in communication with has now retired i believe left and i believe retired  that would have been the most likely besides my own induction you know thinking the issue of my own and looking it up that would've been the most likely source that i would receive it from and that i haven't been able to talk to him because he laughed let them know that we're not impressed with your legal skills i well you're on and so the point is well  so in order to analyze the moon's question the important thing to realize there's two separate ways of challenging denials of medicare what happened in this case is that they specifically were challenging the l d initially to nail j in the h h s department appeals board civil remedies division there's a separate process where you can actually challenge your individual claim hey i got this treatment i want i want to be paid that is brought under section four or five of forty two c f r and it's brought it's a totally different process it's a five step process it does not appear that that occurred here if you do both and you're successful in challenging the l c d then under forty two c f r for twenty six point four six zero be one one you're allowed to the party who is successfully challenge the l allowed to have their individual claim reopened and redetermined without reliance on the l c d or at least arguably opens the door to retroactively get a claim paid that may have since passed the time period for which you could challenge it whether what's going on here is this case treated or not i mean it is prospective determination that the process in which the l c d was upheld did not go correctly and perhaps eventually the l c d would be found invalid but that's basically already happened by the retirement of the  still analyze any claim that was brought for transfer factor determine if it was a reasonable and necessary i don't know if you want me to speculate it's likely they would find that it wasn't for the very same reasons that the the injunction the opposing counsel talk about that's not available under the limited review of that's allowed by for of course forty two u s c forty four  is wrong and that's it if you are denied if the l j denies and the da be firms that then you have the right to have that appeal to the district court and to the even the i'm just fine the curious well i think you would have to be a recipient of medicare or a physician who is allowed to render plains to and she's not making a claim for past services for which she seeks to investment she just wants a clarification this will be reimbursable in the future she wanted the l c d to be individual claim challenge they would be entitle to have it heard even if the l c d then was subs at least arguably was subsequently withdrawn because ok thank you thank you you bring to the court's attention johnson versus rancho santa jago community college district six twenty three f third ten eleven twenty ten one circuit decision for again the authority just like the sufficient time to get an abortion that's of the seminole case on there's no indication here that these things must be withdrawn within the time which would be you would be available even if it's capable of petitions not enough that inevitably oh very likely of either of you that's true but for one thing in the johnson case it was a three to five year contract that was being challenged by non union members that's where the that's where cases like johnson and andersen point out another important factor and that is where reinstatement of the same policy is purely within the voluntary control of the challenge party that procedure for issuing the l c d requires public comment but it's a there's nothing that says that they have to take into account the public comment i mean they can simply reissue it's  i really don't know that this was this was withdrawn in two thousand and twelve or now in two thousand and sixteen that's correct and if you look at the pattern even in this particular case they withdrew the l c d in two thousand and six that was under administrative review by the same it's always good to answer the question yes sir and the again the burden to demonstrate that with evidence on the record that that is unlikely to happen belongs on the defendant the anderson case made that very clear i'm sorry the johnson case made that