eighty three other medicare participating hospitals i'd like to reserve two minutes for rebuttal this appeal concerns the federal courts power to review the secretary's unlawful continuation of a point seven percent payment reduction resulting in an eight hundred and forty million dollars yearly cut in hospital payments that the appellant hospital timely and properly appealed the district court misapplying the preclusion statute dismissed for lack of jurisdiction and in doing a erroneous we concluded that review would only be available if the hospital could establish the payment reduction was patently unlawful the district court however was writing without the benefit of the c h regional medical center versus a's are an american hospital association versus a star both of which confirm that the same agency error can simultaneously render a jurisdictional bar in a political and compel setting aside the agency action so it is here section seven the size of the t m a only precludes review of determinations and adjustments made under a statute that explicitly prohibits the secretary from continuing payment reductions in to to i guess not restore completely payment adjustment that had been made in prior years by limiting subsequent years because it's very clear adjustment these temporary just can't continue forever and so but when when it did so congressman just say this is in lieu of the positive adjustment that would apply in two thousand and eighteen it said estimated to be three two percent because it was acting well in advance of c m s is finalize the nation but my point my point in the question several points of the question but one of them is that is congress  directed the secretary to do something that is on its face contrary to what you say the plain language of seven b to allow seven  adopt another set of adjustments so you know under macro alone it is actually adopted and net negative two point seven percent reduction but because it was being done before congress knew what money was on the table it uses slightly different language and congress was you know i have no concerns with congress you know you know they retaining some funds to achieve very specific congressional purposes but here we have a surplus unanticipated point seven percent eight hundred and forty million dollars each year that congress did not expect or anticipate and therefore did not speak to and because congress did not speak to that point seven percent year so any time if the secretary were to believe that an adjustment needed to be made and and  decreased the standard rate by a certain percentage and then failed to i guess restore the standard rate to the base  rate in a future year under your theory that would always be reviewable because that's not an adjustment yes your honor the continuation of an adjustment is distinct from an adjustment made under the statu in what court has ever held well we start with the narrow construction of the preclusion statute and this is the same most analogous to this court's interpretations of the preclusion statute in the outpatient perspective payment system which refers to the development of a classification system under paragraph two including the establishment of other adjustments including a method under and in each of those cases and gents and american hospital association vs azan and others this court has said that it will look at that if the consideration of the merits and jurisdiction merge when determining whether the scope of the bar and when an appellant is saying that you know for example this is not a method under subsection teach us then that gets reviewed on the merits because the question the merits of the jurisdiction merge under the language of that preclusion statute in this call back to the requirement to narrowly construe a preclusion statute in less the secretary ha say review is precluded but only if the government's position is right on the merits you know that that is the making of an adjustment under subsection seven b one b two but here we have you know the making of the adjustment the positive point four hundred and fifty eight but we have this unspoken to net you know negative point seven that congress didn't address and it is being carried over if we could take for example an extreme circumstance if we have two thousand and twenty four and the secretary keeps  you know makes tripoli sure that an adjustment can't continue after two thousand and twenty three so the continuation of an adjustment is something prohibited by congress and and congress was not speaking to the percent sure civic agency action under review in its in its label and in its substance is an adjustment to standardized around percent to get an adjustment an additional negative adjustment a point four hundred and twelve percent which gets you sixteen million dollars according to the congressional budget office so they're searching for sixty million dollars when there's a one hundred and secretary had said it was going to reduce by a total of three point nine percent i think in august of two thousand and sixteen and then three months later or so congress in they don't say that's wrong it should be a total of three two percent meaning the the your argument about congress being specific cuts against you because you had had your clients that had this battle in the commentary when the regulation was being you know promulgated about whether about whether the secretary could do what it did and it disagreed with you in then congress acted and congress didn't say didn't correct the secretary mean that weighs against you if anything th unlawful conduct that we are arguing here we do not take issue with the making of an adjustment in fiscal year two thousand and seventeen but you argue that congress intended for the adjustment to be no more than three  two percent in congress but have said so after the secretary said we're going to make an adjustment of up to three point nine percent while you're on i would take the view that congress did say so the secretary said we're going to end up with net negative three nine percent congress that left in language it said estimated to be three two percent and did not adjust it to reflect that additional point seven percent taken the position that in two thousand and eighteen it was going to also continue the point seven percent reduction so congress had no way of knowing and st century cures that c m s was was going to take the is an adjustment under the act right yes your honor right so what you're telling us is that that is an improper or incorrect the just meant and yet the judicial review provision says it doesn't say adjustments made by the secretary says any adjustments under this subsection are not reviewable so we can't review that the point four and whatever and say is too small well in your honor we are not asking this court to answer the question of whether the point four hundred and fifty eight is appropriate we are taking our view which we think is supported by the plain text of the statute is that there is apologies congress went down to the th of a percent it is not on the table for review but the point seven percent that is not address in b three is absolutely on the table because congress agency made the upward adjustment the agency made wasn't high enough because they didn't take account of other and forty million dollars under under payment that would be cured by a positive point seven percent adjustment but it's not that it wasn't big enough or anything along those lines it wasn't spoken to by congress and if congress had not spoken to it then the backdrop that congress may tripoli sure was in place with their language in seventy two the language and seven b one b two both of those you know make very clear that the  thank you we will hear from counsel for at kelly made showing good morning may it please the court karen shown on behalf of the secretary of health and human services the underlying dispute in this case is about the amount of the adjustment that the secretary was required to make in fiscal year two thousand and eighteen the statute in particular said paragraph little roman three which is on j h u forty five dollars directs the secretary to make a point four hundred and fifty eight percent adjustment in two thousand and eighteen instead of the adjustment that would otherwise apply under section seven b two to offset the prior recoupment adjustments and that's exactly what the secretary d plaintiffs however say that the secretary was required to make an additional point seven percent adjustment such that the total adjustment would have been one one thousand four hundred and fifty eight percent now as a threshold matter their claim is precluded by the statutes review bar because they're challenging the amount of an adjustment but whether it's a review bar question or just a merits question the directive under the statute is clear and the secretary did exactly what the statute directed him to do total recoupment adjustment would be three nine percent and so if congress had wanted the secretary to make an additional point seven percent adjustment to reflect that higher recruitment adjustment that the secretary ended up making then congress would  said instead of directing a point four hundred and fifty eight percent adjustment in two thousand and eighteen congress would have told the secretary to make a one one hundred and fifty eight percent adjustment there's there's no reason to think that congress intended anything other than judicial review and so the provision should be interpreted with that backdrop but i think here that what the provision says is that it bars judicial review of any determination or adjustment under subsection seven b and what the secretary did was an adjustment under section seven refers to it as an adjustment little moment three says directs the secretary to make an additional i just meant that i mean i guess my just the point i'm getting to is that is that you know how are we supposed to know an adjustment when we see it you know is it is it like you know the absentee test woman when we see it war what what are the characteristics of o adjustment well i think you're going to that matter if the secretary calls it something else well i think what should i mean i think the best indicator here is the fact that the statute itself  referred to it as an adjustment and since we're interpreted the statutes review bar i think it's very instructive to look at the way the statute referred to but then the secretary did the coup by increasing the standardized amount by point four hundred and fifty eight percent and the statute refers to that as an adjustment and the statute more generally refers to what the secretary otherwise would have done under seventy two to offset the prior recruitment adjustments as an adjustment that year where out i'm looking at i'm looking at the preamble of that agency action and it's expressly described as an adjustment in the preamble say you know i think whether this is i mean as we've argued in our brief we think this is within the plain terms of the review bar but whether it becomes a review bar question or you you decide to reach the merits i think the directive under the statute was clear and the secretary did exactly what the statute directed him to do under your provision urt your position that you don't even need the jurisdiction that's right i mean i think if you reach the merits you know i think that you know as the secretary said in the rule making the directive under the statute was clear the statute directs the secretary to make a point four hundred and fifty eight percent adjustment hometime that's exactly what the secretary did the the or on judicial review jurisdictional in the sense that we have to address it st i know your honor i mean i think generally you do address it st it's not a matter of scope of the review bar but nonetheless assumed statutory jurisdiction as they refer to it to go on and address the merits and dismiss the claim on that basis so i mean you could you potentially do that if you wanted  you because the man merits argument is that the secretary got this right the review ability argument is simply that the secretary was doing all of this under section know i would just like to quickly point out that for example an amgen versus smith where there was a question about preclusion on review of the establishment of other adjustment it was it was clear that we had an adjustment at play in a n but the court said that the preclusion a preview of other adjustments extends no further than the secretary's authority to make that and the same approach should dictate that the construction of the judge cassis question i mean that makes makes the bar totally worthless because the only time he can invoke it is when the secretary had authority to do what he did well the bar here are operated for many a an adjustment applied his discretion to calculate the amount of the discretion and so forth and adopted that adjustment in two thousand and eighteen congress if you summarized you know what it says in b three with it you know i and limited authority that's granted in t m a with all the subsequent amendments that the secretary does not have anyplace else in the medicare act and that intent for a narrow authorization probates the statute  are no further questions we will take the matter under advisement thank you c