very much we're here for virtual argument in our nd case of the day temple university of hospital university hospital in st secretary of the united states department of health and human services case number twenty one  no i don't know that we're getting audience right  behalf of temple university hospital and if i may i'd like to reserve four minutes of my time for about oh ok best case it's straightforward it's an interesting case but even medicare act is infamous for its complexity this case really doesn't require us to delve that deeply into those complexities it really boils down to a relatively simple concept when congress tells an administr agency that it had to do something did ministry to the agency in fact have to do it and that is the case even when the agency doesn't agree with congress the statute here the three or me classification decisions  i've called it just for clarity sake it really is a model of comprehensive clarity not every statute that comes before this court is going to have a bright line rule that can relatively easily be applied this one does once you get a geographic reclassification approved it's valid for three years there's no s there is no but there's no it's up force there's no discussion with the agency in fact it removes discretion from the agency and congress let me just absolutely or honor and we don't contest that the agency is somehow prevented from reconstituting or changing geographic areas what we do say is that when the agency does that that it has to apply them a certain way with respect to hospitals within existing reclassification and it has to be applied so it doesn't violate the specific statutory mandate that governs that response occasion and congress really could have easily granted discretion to the agency could have said it may be effective for three years congress could decide it it shall be effective unless the secretary decides differently or reason could have addressed the circumstances here which congress knew existed because of some actions that have been taken by the agency about four or five years before the statute was an act that congress easily could have said it shall be effective st three years except when the secretary reconfigures away geria congress didn't say that what did this site is it shall be effective for three years and that broad discretion that your honor noted that applies in many areas of the medicare act the fact that there is broad discretion i think it's incumbent upon the nd term the courts to then be especially attuned when congress tries to limit that discretion didn't do so here for the agency but let me let me just let me just pick up on this the because because a lot of what you say at the outset really resonates with me this is such a complex regime and it's it's grown that way it's gotten bigger and bigger and bigger over time and every now and then we have these kernels of clarity and one of the kernels of clarity that you're saying is this three year this that this this free limit are almost guaranteed but you know and i don't mean to push you into this other issue because i know you're going to get to it but it strikes me that another kernel of clarity is the channeling the kind of mandatory jurisdictional channeling that hast to happen and i don't think it's in the record that that happened here it's so amidst this sea of i think complexity i can see that three years is very clear without exception but i also can see that channeling is very clear without exception and unfortunately for you if your clients we do the channeling clarity  your honor the credit of the blame we'll leave that for others so we have this we do have chilling that occurs here but we also have a very recognized exception and then an exception that applies generally in certain contexts in the medicare under the medicare act one that apply specifically in the n g c or be the medicare geographic classification review board context and that is probably a unique the cases that we sign our brief guy singer is one from the rd circuit lawrence a memorial is one from the nd circuit base county is one of from the district of columbia those cases really do stand for the proposition i believe that when you're talking about a policy a rule of regulation and to be honest i'm not quite sure how we would describe what's been done here is a regulation that just as policy i'm a little unclear and the secretary might have something on that but when you have this analogy that's going to apply and there's no review there has to be a pathway for the courts to see this issue quickly and we know here i mean we actually have a math that means as of j june th temple will no longer have the right to withdraw its request of a cation to what we call the mitigation violence c b s saying we call it mitigation for a very good reason the only reason it was pursued was because of what the enormous economic harm on this hospital and the patients and communities that it serves tens of millions a year to year the agency is foisting that decision on the hospital and the hospital has to make it and this court i believe needs to provide the agency to understand it all in so i think the answer is congress appreciated a lot of that and they said that's why we're going to channel this st through through the administrative process and then to courts it wasn't a complete bar on courts and if i understand the law it basically goes like this everything must be channeled this is kind of illinois counsel unless channeling is the practical equivalent of a total denial of judicial review and that way illinois counsel accounts for michigan academy and so it strikes me and maybe i'm wrong on the law but it strikes me that everything's channel unless it's a practical one of a total denial of judicial review and in order to avoid channeling you have to demonstrate is the party in illinois counsel could not do that this would be the practical clipless of a total denial of judicial review it so if that is the you know a discrete that senator but b if that is the standard because maybe that's you speak only for myself how i read the law what do you have to say for how caused by not being in that area when they never actually got into it in the st let's say one hundred they didn't actually get into it they got into it when the n p c rb made the decision to reclassify temple to the new york new jersey c p s say that that decision was not refutable and it is valid for three years and that's in fact what the statute says that you're correct that the secretary's actions policies which we believe to be unlawful prevented the hospital from getting the benefit and the benefit that congress intended with that three year statute so you're absolutely correct that the secretary did in fact prevent the hospital from getting the revenue that it was entitled to receive under this statute but statute but the agencies face essentially the same circumstance where it approved hospitalist reclassification to an area and then reconfigured the area several months later affectively removing the county from that area and the question then was because the link to that county had been essentially eliminated does every consultation take effect and the answer from the agency was yes now gays can say has highlighted in his brief that it's free to change  mind and the answer normally might be you can change your mind in the future but not when congress says you can't which is what they did here so we wholeheartedly agree that there's been reconfiguration it's really when the secretary can implement that reconfiguration for temple and other hospitals with a three year because the cation that that's so my time i notice is up your honor in terms of my initial presentation if there's floor is yours for fifteen minutes or the virtual floor is yours that's fifteen if you know good morning and may please the court thomas pulling for the secretary and the government defendants i'd like to start with the discussion of jurisdiction that temple here challenges a policy adopted by the secretary during the annual rulemaking for the inpatient perspective payment system the medicare act provide francis and by the supreme court in illinois counsel that's now opposing counsel has said that no judicial review would be available but he specifically referred to there would be no review of the reclassification to the vine when c b s say that isn't the challenge action here the challenge action is the portion of the secretary's thought while making for fiscal year and twenty one and there would be judicial review of that after it went through the reimbursement war council has it cited any cases where courts have held that a party wanted first there's no reason to believe that for relief would not be available assuming that temple didn't take voluntary action to terminate its new york classification and even if relief were not available so we're going to convict or carve out for what michigan academy says and it basically says look at the channeling process is the practical equivalent of a total denial of judicial review then it precludes it and we have to judicial review that's on who ever says that they don't want to go through the channeling process and i guess my question though is how exactly does someone go about making a claim along those they're a hybrid came back and so you know that's really the point we were we were prepared to address this because it didn't happen below it love to make this argument we've got one million reasons why i would like to make this hard all of them are fact bound of course and now here we are temple didn't express any need for further development and i don't think this is that kind of factual issue where you would need in tauranga tories or affidavit i mean i think this is something that a party would kind of establish by looking at the the way the law works they would make a legal argument that judicial review won't be available and i think a serious challeng premise i said they might have fact based arguments billable and essentially what he's saying is no no no it's clear it's only a legal determination we can evaluate that on the law because because the avenues of other attacks a lateral attack anything like that should be manifest in the law regardless of anything else i think that's right and more specifically in this case temple number advance the argument that that just might be the unusual circumstance where there were there was some kind of fact  where it said that you know we don't hold that individual party could circumvent section one thousand three hundred and ninety five dollars i was channeling requirement simply because the party shows that postponement would mean added inconvenience or cost in an isolated particular case rather the question is whether as applied generally to those covered by a particular statutory provision hardship likely to be found in many cases terms what appears to be a channeling requirement into complete occlusion of judicial review so we're looking at how this operates generally not kind of the specific facts and one party's situation  i was i recall reading recently in the news that as a result of the dissent you'll sentence some states are going to lose representatives lose seats in the house of representatives and some are going to gain seats in the house of representatives but see those representatives are guaranteed by the constitution to serve out their two year term and so so so there may be a huge reconstitution reconstituting that happens before the next election mid term election but they have it they have a constitutional guarantee to serve out their term we don't sell you one pennsylvania loses a representative now it's a bit of it might be a strained metaphor at some level but the clarity of two year term but i'm it's the reality that things will be reconstituted does seem to work pretty well here because we have clarity of effective for three years amidst the count of being in reality that things will be reconstituted but it doesn't seem that you can say that the the secretary didn't simply cancel reclassification and say ok everyone go back to your geographic area the secretary said well the geographic area to which you've been reclassified no longer exists as a kind of relevant labor market with its own wage and ducks under the system so i have to figure out where to put you the statute doesn't address what it means for reclassification to be effective in seems like what you're saying which is no no and m's it just went somewhere else i'm certainly not an expert on destructing but i don't think this is a situation where the congressional district has ceased to exist right now but i'd like to just point out that temple's argument really depends on this coincidence that the revised new york area labor market shares a name and does a native number but the area that it was assigned temple was never assigned to be average wages were much higher in new york city than at the counties near where temple was assigned now it's not always the case that when it may be market is split apart it's split apart into something that continues with name and number it happened in this rule making that the labor market for chicago is split into twenty one dollars county one into a preexisting labor market the rest were assigned to a labor market with a new name and new number no temples argument wouldn't explain what to do in those situations and i think when we have these kinds of revisions the secretary could be faced with a a number of possibilities and this shows kind of the the ambiguity that's wage index factor one point three something for new york you get it with three years so playfully later at some point in time we've reconstituted things what district you wind up in eventually ok well we'll sort that out in three years but once you've got it we've promised it to you we can we can maneuver things all around we want but it says shall be effective for three years and it's very hard that is being effective for three years while the secretary said he and he did believe that the reclassification was affected for three years because it maintained the hospitals and reclassified status the question was which geographic area to assign them to and i just want to be clear that temple does not ask here to be assigned to a labor market consisting of the same collection of counties to which it was assigned previously a temple says we should be able to be assigned to what is now called but that the new the revised the current new york labor market area that market area has a significantly higher wage index precisely because the  counties proximate to temple have been removed for from it now the secretary's assignment policy at dances but kind of overall statutory purposes of all of the relevant sections the wage  if the secretary extremely broad discretion to calculate this factor and to provide for transitions and the purpose of reclassification which is this court described as providing comparable reimbursement to hospitals th compete for the same labor pool due to their geographic proximity temple has asked to be reimbursed based on the labor pool in new york city not based on the counties to which it is in fact geographically proximate so nothing in the statute guarantees temple that kind of went fall here now it could have been that one of the possibilities the secretary adopted was as your honor suggested well we will preserve the signed of the kind of same collection of counties temporarily and give you a wage and extra that and the areas previously constituted that would require basically the maintenance of a kind of shadow wage index system and nothing in the statute provides for that and you would expect something a lot more explicit as to how the reclassification provisions relate to the secretary's broad authority over the age going to happen let me just trace back i think i heard you just say in let me just make sure that what you're saying is look we re dish out be effective for three years language that shall be effective for three years language does not connect to wage index it might connect to other things but it doesn't say that your wage index will be effective for three years it talks more about your that the district in the district you would what i think the statutory provision speaks to is a classification to a geographic area and that geographic area as the judge roth indicated in her question that regulation the proximity and wage requirements are established by regulation so the secretary strove to balance these kind of the proximity requirements status we just have to figure out where to put you and because the statute doesn't specifically address how these two provisions will interact given the need to create kind of a cohesive whole and really it seems to be what the secretary saying when circumstances change whether it's geographic configuration of a c b s say or some other circumstance all the secretary has to do is reclassify a hospital somewhere anywhere the secretaries essentially saying that they have to reclassify hospital for three years but it's not fixed and it's not clear to me how the statute really matters if it's not fixed for three years because the no reclassification can ever be guaranteed to any area whether it's because the secretary has decided to change let's say for example right now you have to be within a certain mileage of a c b s a to recross the file if the secretary changes the regulations and says instead of say thirty five dollars it's now going to be the ten the secretary's going to come before the court and say we get it we have to reconstitute but they can't go there and that's not what the statute wants so so let me just let me just posit this though because i mean you lead with a point i think probably everyone agrees with which is this is this is  start making weight index decisions differential wage index decisions among and of these within the same c b s so maybe they would say all right we've got this statute that says temple you're still in the new york city area but you're going to get the vineland wage index is that permissible i don't think it is your honor because i think there's going to be some obligations to treat hospitals in a particular s say the same but that's also not what happened here at the agency wants to go through a process where it fundamentally changes how it does wades into fees and reclassification some like that's a longer process than occurred here so i think you still have that question of what does three or mean three years mean and under the secretary's interpretation it means essentially nothing that means you can go anywhere the secretary says and that complies with the statute and that really got the statute requires that because there are requirements as to the area that you can go there established by regulation there are requirements correct and the secretary in to this change has in fact changed the requirements it's changed it and said under these circumstances we're not honoring what we require that happened by statute or regulation and we're going to a bit of an ad hoc change some are going to go here some are going to go there some are going to go nowhere a well i can't recite all the fall but you know what they're in there who could qualify for whatever yes your honor and and we met them temple met them absolutely that is correct and that means that the next time that temple applies three years from the last application it probably will not be admitted to new york but for three years it needs to be it's supposed to be and that's what the statute says if i can circle back very very briefly on the jurisdictional claim the defense didn't raise this before the district court and i think the fact that there is a pathway there's a recognized pass pathway and deicing are lawrence a memorial based county two of them court of appeals decision one from the cert circuit that says there are facts that do not require you to go through that channeling process the fact that that fact based pattern exists and the secretary centrally agreed up until april nd that the facts of this case satisfied that that exception i do believe it's too late for them to contest but they've agreed to that wasn't there wasn't any doubt as to the path we were pursuing the agency at the highest levels was involved in this case this is a very important case to offices assistant u s attorneys were involved in district attorneys excuse me one in eastern district of pennsylvania one in new jersey and they agreed that that was the appropriate pathway that template follow it otherwise there never would have been any briefing nobody would have wasted the district court's time so it's a the fact that to the extent that there is a pathway and if the court's going to say there's not and that is contrary to geithner and the rd circuit  this tease this out one it's a it's a it's a matter that goes to subject matter jurisdiction so unfortunately these notions of timeliness and subject matter stiction there is a little bit  gotcha to new news subject matter jurisdiction defenses are just they just happen to be that's just the nature of jurisdiction but it one level isn't yours i mean doesn't it really depended terms of the equities on whether this exception to account for michigan academy of basically the practical equivalent of a total denial of judicial review but that's a law based then we can do that right now to extent that that that's fac based in facts were at least open facts have been put before us that you think we should adjudicate then then maybe we're going to we're just in a different situation but do you think that that's law based or fact based because when supreme court addressed it at least i don't know the answer practical suggested expect based but a lot of their analysis looks to be independent of a specific facts i think it the legal concept having said that when you do have a fact based patterns that are exceptions to that channelling requirement and we know we have them the rd circuit had a case just a few years ago that didn't follow that channeling process so we know it exists so i agree on that that there is a legal aspect to it for sure but we also have this fact pattern and if the agency has agreed and they in fact have that this case didn't need to require that kind of channeling i do ar that it's late now and too late now for the agency to say hey wait we can test those facts that we agree to we can test that we agreed that the p r b is not the appropriate forum for this to be heard in the st place and the fact the matter claims i have i don't think i have anything for you know i one further question does the channeling statute require i've read some cases that suggest it requires presentation it may just kind of take out a lot of these other concerns to say for whatever reason we have a presentation requirement the fact that exhaustion can be waived might be a game changer in terms of mandatory and then an exhaustion wafl warm i don't your honor and i want to emphasize a number of courts also didn't see that so this would be a prospective policy i would argue that the court should be establishing if it so chooses sufficient on this withdrawal of voluntary is perhaps an orwellian term by the agency to characterize this as voluntary but so so if you presented to the agency it's not clear to me that you've got to then get out of that  granted here and if it's not granted i don't think the argument can be you have to present it to the agency if everything works perfectly for for the hospital if you have to have them out of before the agency then it has to be before the agency in my opinion and the agency has a right to p r b has a right to say network using this for five years and incidentally roughly thirty percent of their cases are five years old and in so so i guess my thought is maybe i mean again maybe this you know i don't know i'm not i'm just trying to think of what's possible maybe an entity like temple university hospital would present to the agency to to to the board and say hi we're presenting we need to answer asap because as you know you know we we want to go we want  should be in violence or someone somewhere else we need decision from you really quickly we met our real requirement a presentation and we think the rest of the exhaustion is going to be futile if you don't let us know that you've got a decision and it least they are you get into to really expose maybe a vulnerability of the channeling injunction but absent presentation it's harder to find that same vulnerability t just two or three years ago and deciding the geisinger case and i want to get with the timing of this administrative process because the secretary did talk about this expedited additional review process which is sometimes iction it has to get to make sure that the the case is completed and we noted that the agency is at a particular deficit in terms of time right now with the pandemic and so the circumstances of this case are particularly unique so i wouldn't disclose and i know most of my time so i will close as many more questions i think if the court is saying that something is different than what's required for i think the last decade in every case that's been filed related to an empty c r b then i think it should be a perspective thing especially in the circumstances where the government itself right up until april nd said yes this case has factual things that require the immediate consideration of this matter by the court and so i'll end up that barring any more questions and i'm happy to respond to thank you hearing no questions will take this matter under advisement i note on behalf of myself that i compliment both counsel this is a really complex matter reading your briefs was actually easy relatively easy especially given the complexity of this matter i know that's really really hard to do and your arguments in my view has been excellent so just thank you for an expedited case for putting in the time to give such