ria during this case it appears to us that the question in this case is a simple question of whether or not the carrier here in new jersey is designed to handle the type of audit procedures being designed for the education of large numbers of claim to it rather was an individual case by case determination that law that decision has not been overruled and is still good law because the carrier and procedures are still the same they're just going to have an individualized determination and not a determination through an audit or calculation of alleged over payments or any other of this sort of massive type of review that the that was tempted to be used in this case that seems to me to be a simple question is that what in a straight a procedure is plied and is this the one that seems to me to be a case within the jurisdiction of the court just as a lower court just as it was within the jurisdiction of the lower court inclined versus hecla is that what happened in that case doesn't say anything at all about what was preserved in this case this isn't as as you know exhausted within the administrative process i think it does your honor because incline versus heck were they the secretary to provide an appropriate procedure in the subsequent follow up case i think it was plain versus sullivan several years later the court determined that in fact what had happened is things that stalled for a variety of faults and that the secretary had never provided a minister procedure but in that case the might have had not actually pushed hard on that you look at the amended law which provide a law where congress and active judicial review talk about allowing judicial review for certain smaller claims it does permit the aggregation of certain claims but only under limited circumstances under which you can aggregate claims for purposes of this judicial review only if that there are claims involving the same treatment of earning a vigil for a single beneficiary or common question or for several beneficiaries if they involve common that you can put a few claims together if they involve certain limited scope of issues so that no i don't think that that in adding this judicial review procedure congress necessarily intended to change the carrier hearing regulations involving certain penalties and that the following that procedure would allow the parties in that case to present the very issue in a very approach and way the regulations contemplate in other words what the court was look they had a regulation dealing with hearing procedures for audit and recoupment claims then certainly that would be a case for exhaustion the problem here is not that the problem here is that the care you're hearing ones carrier hearing regulations do not comport to be and are not the type of regulation regulatory procedures designed for that and even with the expansion of judicial review in the one nine hundred eighty six amendments there's no indication that the congress can see that the carrier hearing procedures would be anything other than what they were before namely the adjudication of individual claims on an individual it's based it's just like they were judy kate before with a slightly expanded area for judicial the night here i'm sorry you're telling us why it is that carrier hearing procedure shouldn't apply to this case and i think the questions we posed to you were focused on the failure to pursue that complaint through the adjudication system  provided a procedure that's appropriate and that's designed for us then we don't have an obligation to exhaust what about ellen my counsel eleanor counsel talks about a channeling function if the court if the secretary still doesn't have regulations to channel particular disputes like this order to spew into regulations and i'm not saying the secretary could not create such regulations or just has not done so then there is no obligation to exhaust otherwise the court would be faced with the following problem the court secretary any agency could say we have this procedure over here every agency does you have to exhaust that procedure whether that applies to you by regulation or not we say now you have to exhaust it merely because we say you have to exhaust it seems to me the function of both the law and the regulations is a different one namely it's to say if you have this procedure and you fall in that type of category then you have to exhaust but it does not say that you don't you have no right you have to exhaust procedures that don't apply to you that on their face don't apply to you that are designed to deal with a different situation you have to simply go through the regulations as you know when i counsel address that specifically says the fact the engineer may not provid hearing for that particular contention or may lack the power to provide one is beside the point what you are and what it says that they're talking about in terms of regulations about contentions not regulations applicable to disputes and the words that they are saying in that context if you wish to make a particular argument you can make your argument in the context of procedure that has been created to adjudicate this particular dispute they are not saying and that does  that case but name it they're not saying that any time any agency procedure that is and that could be applied or any agency procedure that the agency says we would like to you know impose on you they can do so regardless of the nature of the regulations regardless of the statutory authorization and regardless of whether that is the procedure that has been actually divine used for that resolution whereas in this case we have other procedures that have been done that of the regulations designed to deal with overpayment issues and other matters matters involving this issue they are not the carrier hearing procedure so under this under that theory then the court the court is not close never talking about a situation of the procedure because the court set it in detail why this procedure apply under the regulations rather they're talking about what arguments you can make once we know the procedure applies to you so that i think that comment is not a broader than than if the procedure please the court scuse me i'm stephen salthill appearing on behalf of the apple e secretary of health and human services the issue in this case your honour's is whether the district court had jurisdiction to review a denial request for an elegy hearing that was on timely under the medicare statutory scheme judicial review is limited under forty two u s c section four of five she two a final decision of the secretary made after hearing the question for the district court was whether the denial of an l j request as untimely was a final decision made after hearing and applying the supreme court's decision and california against sanders and decisions from this court and other courts of appeals it found that it was not the appellant's argument who makes the decision as to whether there's going to be a hearing  mean what just seemed odd to me here i haven't given it much thought but it seemed odd to me that it suggests that a decision by an l j whether or not to hold a hearing is a court of the argument just made control of the gate as to whether or not any court can ever look at that decision well that's right yes you are the only decision was made was whether a hearing could be held that was the request was made two years after the period ran through the secretary and then i believe the right of the secretary adopted the findings as a final decision as it as any other decision in the administrative process would be adopted once it ends once review  on timely is not a final decision after hearing which of which judicial review was limited to under the statute there is no general federal question jurisdiction under the under dismissed cases not denied well the reasoning under for example the colophon against sanders decision is if the agency official can make a determination without a hearing has the discretion  make a determination without a hearing then it can't be a final determination after a hearing within the meaning of forty two u s c section four of five ga and for that reason there is no jurisdiction because jurisdiction is limited on almost exclusively is not does not stand for the broad proposition that he states and in fact is an apis that to this case that case arose from a fraud investigation that was initiated by the secretary not a carrier review of claims church determine whether they were medically necessary or supported by documentation in that case the secretary informed klein well first there was there was an investigation of fraud investigation and the secretary suspended it used the suspended suspension and recoupment regulations to suspend payments and then tried to collect a debt from the suspended payments the secretary informed klein in that case that the only review of the existence of the debt and the amount of the debt was by the carrier and under the statute as it exist at that time there was no just review already l j review for that matter of part b benefit terminations the court found this court found in that case that that the case arose from a f investigation therefore a different statute applied and that was forty two u s c section thirteen ninety five y which authorized the secretary to investigate fraud and to suspend payments and also more importantly had a specific judicial review provision and it so faced in that case with no review of part beach terminations or this fraud statu which did provide review the court found that the fraud statute applied and therefore there was judicial review or jurisdiction to review the termination unlike klein this case arose from a carrier determination that services were not medically necessary and that they were not sufficiently documented there was no fraud investigation underlying this determination also unlike kline the appellant here had administrative and just review benefits and the provider has the right to do noble review before an elegy of those determine those revisions and then appeals board review and then filing to the district court if he stays within the administrative channel administrative channels that were provided to him  secretary is a further step that the secretary has not taken in this case could take and those regulations would only apply after an overpayment terminations was made using the procedures that were made you i would direct your in terms of the applicable law i would direct your attention to forty two u s c thirteen ninety five d d d which is part of our second statutory appendix that's the section which apparently of the decision by the secretary of believe we covered on their brief i'm happy to answer any questions on that but seeing them out of time i wouldn't want to go over what i've said in our brief unless the court has questions