challenge to the application of the balanced budget act to permit the executive branch to amend an entirely separate statute the medicare modernization act by changing the formula for reimbursement of part and nd by erroneous lee dismissing appellants complaint for lack of subject matter jurisdiction and there were two key rulings that we contest that formed the basis of those ultimate decisions st the district claim was really arising under the medicare and then held that the claims were barred by virtue of a preclusion for judicial review of quote determinations of payment amounts under the medicare reality but it was but the medicare act created a formula and it says specifically that the reimbursement rate for part b drugs will be the average sales price plus six percent it was a separate statute the balanced budget here but the directions your honor were to impose sequesters that in this case led to the executive branch not the legislature redefining the formula but now you want to here's where i think that the problem lies and that's been set up in the clinton vs city of new york it's because what effectively in that case you could argue congress did the same thing congress said to the president we have a balanced budget act we have the tax reform act but if you don't like certain things in that we're going to let you change them and this screen porch said that is impermissible because under the present clause that allows the executive branch affectively to either repeal or a a congressional act similarly here where the executive branch was given the discretion to reduce by up to two percent what the formula in the medicare act said we contend that that really is no different than what granted to a correct because if that applies to individuals or not members of congress but the language of nine hundred and twenty two a says it any member after any person adversely affected by any action taken under this won't hear you're trying to dodge your arm because the term concerning the constitutionality of this title we think means that we don't have to make a facial challenge that the entire budget balanced budget back in a budget balanced budget is unconstitutional what we've said specifically as applied by the executive branch in amending a separate statute that application is something that also concerns the constitutionality again permitted to exercise any provisions of the balanced budget act of the tax reform act that you don't like and so that's that's effectively what we're saying happened here and that we think that the language concerning the constitutional of this title can that that can be embraced by that language because concerning in the case law that we provided does have a connotation of a wider brett and so we think that the use of the word title shouldn't preclude any challenge that otherwise or clearly fits within the prohibitions now that might make sense in the excuse me in the abstract if we just had to put  in a harder case for you in the context of a statute which distinguishes between challenges to an order and challenges to the title well i think that to limit it's not simply the particular seaquest ration order that is the challenge of the challenge i mean that certainly is what creates the specific claim but the overall challenge is to as i said the structure of the two statutes side by that you serve the complaint on the house and senate was that something that you did the i don't believe is a complaint itself was served on the house and senate but i know that the that been through certainly that the secretary was put on notice well before the complaint was filed  complaint the only one that the district court judge ruled on was the issue that we've been discussing the channeling argument that the claim is not been properly presented was not when it was it was ruled upon by the below by the executive director of the movie oncology alliance and specifically said that claims themselves that had been submitted by are colleges and had been paid at the revised formula rate and under the case law that we said in our brief that that is sufficient to satisfy a resentment it does not have to go all the way up to the secretary right because you're not seeking review of any one of those particular claims you're seeking review of a legal issue that's embedded in all of those claims just in the abstract and that's absolutely right and in fact that's what the channelling requirement says you can't do what would you need to be seeking review of a final decision of the secretary made after a hearing to which you are a party i think if this claim arose under the medicare act that would be true but because we does are a summary of medicare for these purposes between h p plus six percent versus a sleep plus four three percent it's not being i mean if you if you don't have individual claims that's why you haven't satisfied percent require your years i think that we statutory standing by virtue of an association i think that the claim is that on balance budget act you know i've said probably too many times today that were remaining eight as applied challenge sure and you you to say that your claim arises under the balanced budget act rather than under the medicare correct but sprint court decided one burger versus alfie which says that if you bring you're bringing a constitutional challenge to someone the taishan on medicare payment it's actually social security but the same principle right the claim arises under the medicare statute for purposes of four of five g and four or five age even if it also arises under the constitution in the sense that constitution is some alternative source of law that you're in g that same principle governs this case where you're invoking a different statute the balanced budget act in order to impact how much money you are entitled to under the medicare that i think a national associations was of home care for example the we were not required to bring the constitutional claim to the to the secretary but rather by presenting actual claims that were affected by the act of going forward and how i mean if i were an oncologist that is part of your alliance and i disagreed i want to try to go back and get what i thought was under in the increment of reimbursement cuts for pain is for quote service is furnished and in the complaint we did identified that wasn't clear that drug was was to be clued in services the purpose of doing that there was not to making independent statutory interpretation claim but to suggest that this in fact may have supported the idea that not only because we know wonder clinton even of congress is wanted to give the power to the executive branch to modify legislation it can't but we were suggesting that it wasn't even clear that congress it wanted that to happen here by i think in doing so overtopping created some confusion and and perhaps an in the dish or quit i think will was confused because at the end she found despite numerous references rather playing to the constitution i ask in make one the vast bulk of your complaint argue use that the action few it's inconsistent with a clinton versus john's argument or they could support a dull converse a specter or game but they're usually invoked in connection with an argument that statutory formula it is the statutory formula and i mean i think the closest you came just pretty good for you buddy it is just a stray line is the reference in the complaint to this looks like a line item veto but most of it is really keyed to the medicare statute well i think i don't know if i've got a full quantitative analysis or a word count i do think as they say there are and are in paragraphs thirty four and thirty seven we talked about the line item veto as as you provides in terms of a right to meet claim so i can't dispute that there is plenty of discussion about the statute itself but i think you and i don't think that should have disqualified us and lead to a decision that the district court made which flatly said she says that the community oncology does not claim that applying the balanced budget act to the reimbursement formula for medicare par drugs would violate the separation how do you agree that at least to the extent he or the complaint has an argument of the form the statutory formula u nder medicare there's no authorization under the balanced budget act to change that president when it changed it and therefore violated the separation of powers that sort of claim can't go to  a three to mean dalton versus specter says that you can't you can't make what's otherwise a statutory claim into a constitutional claim just by saying the executive has line item veto act and why doesn't it we stop for pleading purposes t a up an argument that the problem with the statute is the same problem clinton versus new york constitutional versus statutory point to nd guess the sec check the box constitution and i think the district court correctly recognize that it's yours and the vast majority of all claim to claims are alleging a statutory interpretation argument then they throw in allegations question medicare part b drugs that would still be this kind of problem but of course if congress intended for medicare part b drugs to be sequestered in the balanced budget act it's hard to see how that is called executive legislation drafting if they state in their complaint but again putting a p merits doesn't mean they're presenting what they say is a claim and whether it's you know impermissible delegation and minor buteux they're saying that for congress even clearly and intentionally to give that sort of you know plenary authority to the executive branch is unconstitutional i didn't mean to get into the merits your honor just to interject katz's question about how it's not it's not obvious to me that this is in any way similar since two thousand and thirteen as applied to the medicare statutes not to the title itself are cases where this hasn't been revoked and would you know it if the case were received in the statutory conflict were due to do it would be but are you aware of constitutionality of the comptroller general then a role in the statutory scheme and i think of course that kind of constitutional claim to the title itself and how secret racial worked across the board is quite different from plaintiffs claim here so attached to the to the response to your move argument in this regard individual providers were identified and the effect on their businesses of these lower reimbursement cited st i want to note that we haven't abandoned exhaustion we've argued presented here because of course that's the bare minimum and they haven't satisfied that so i don't want to say that we've abandoned exhaustion but to go to your honor's question the declaration that plaintiff plaintiff's executive director it was attached to the opposition to a motion to dismiss your all that says is that all providers not any particular provider identified who have been reimbursed by medicare have been reimbursed at the sequester to ask for reimbursement i mean don't they typically say you know this number of procedures at this code and that's that's how they interact with the agency or my shop the option of places argument here is just that providers are really receiving reimbursement of sequester amount as you stated certainly that's the case because these payments are being sequestered but please just haven't said to the agency that's unlawful i need more money they haven't disputed that payment and they haven't submitted as far as we know any claim for more money based on hey you can't suppress from this money it's unlawful point of the president will permit your honour's so that the agency can be presented with a legal argument and then make a decision in the st place let alone the final decision that exhaustion requires under our cases i don't see anything that says the present channeling requirement includes a legal argument it's really about you know right medicine we're were avoiding an anticipatory challenge do we have in fact something that's already occurred that is is being address challenge in terms of requiring the provider to identify the relevant legal issue here and that's this court's action alliance for senior citizens case in that case the agency had erroneous leave provided money i get i think refunds and then it went to recoup that money and people brought a legal claim and the question was whether they had presented that the agency they were to potential statutory bases or recoupment or waiver work and this court held that just to one of them the claim hadn't been present to the agency because in all their communications with the agency no provider and said hey under this statute you can't recoup my money and so i think that pretty clearly your honor is that they're relevant legal theory has to be identified to the agency and this court here said the idea that the agency just supposed to know that a provider is dissatisfied and why that would strip requirement of all meaning and i think that's true just a claim here the idea that the agency is just posed there was no demand there was no evidence that that the individual had even made a demand for payment and that had been clear in our room and whereas here there is no question that members of the pla organization have made many demands for payment but europe has no indication that the provider has made a demand for payment of the sequestered amount that they allegedly haven't received for example a provider hasn't said hey you were able to give me that two percent that's none of my payment or you give me a lower amount of money there's no indication that any provider at all has said that actually and if they had there's no authority on the secretary to do anything about well st of all even if the secretary doesn't have the ability to address  m s had discretion to do various things that they haven't done and so i don't want to again say what the agency would or wouldn't say if it was presented with this legal contention by a provider which it undoubtedly has not been so it is your position dispute we don't you know anything close to that hearing and to get perhaps your honour's concerned there obviously could be questions in individual cases about well did you raise this theory did you raise this theory what theory is this but here we have nothing there's no indication that any provider at all has raised any kind of dispute with the agency about the payments that there's there's no there's no payment decision before right you're we have no idea what happened in any individual  between present and exhaust and i understand the challenge are moving towards one harvesters fictional the other is not the present moment is really an argument against supreme force one challenge of saying is there really something here that's actually i've been i've been paid it was sequester amount give me the two percent that i haven't gotten but the decision of payment has been met people are receiving medicare funds i presume i mean again they don't identify any particular provider let alone state that a provider has been has raised a claim to the agency for the payment that they're not receiving separating out the two things they have identified critical providers and they have identified that those providers are now getting less reimbursement so they yes and an attempt i think to mister they're standing in the district court yes but i mean there's no indication that any provider has said to be agency i deserve more money because i haven't because it the legal theory or sequence version that's argument that's been advanced here and that's the present ramey era i'm not sure you know we have to decide on that nd part i'm not sure we have cases that have so clearly articulated the way you do what about the jurisdiction have to satisfy for example because what's different about this case from all the other all the other prison i mean cases involve either issue medicare wall including whether particular medicare provisions are constitutional or not whereas this case the the the other issue is has address that i think similar arguments can be made about constitutional claims or procedural e p a claims but when those claims also rise in medicare statute they still have to be presented to the agency and i think the sam plaintiff's entire basis for standing is that it has standing because its members are injured by allegedly receiving less medicare reimbursement that they're entitled under some constitutional claims can shade into medicare claims as a violation of section one thousand three hundred and ninety five w thirty eight dollars that they're entitled to pain that by virtue of that provision that specify that provision and that the secretary for example is violating that by not giving them the payment to which they're entitled it's indisputable you're might apply and that was the order that this court also addressed those two things in the american hospital association case address presented st and then left to the agency to decide whether the more specific provision line on the more specific  with their counting is the supervision of determination under the section of a cut under the balanced budget amendment and your position is that's none the less within it so i think the natural understanding about language is that it precludes review the ultimate reimbursement determinations for these drugs the determination of the payment amount of the section because those are myriad and complicated datable  process separate provision and here it's even more separate after the determination of a payment amount there's a whole separate statute that says now looking back and parallel a some portion of it so why wouldn't that provisions that relate to the ultimate thing that are here with determination what c m s is giving you at the end of the day that's what plaintiffs are using here there's no question what they're being given at the end of the day i don't think that changes merely because another statute is trying to get review of this thing that happens before and how much is that but here quick question is degrees in phoenix twice right right your honor and i mean the cases cases have two ideas running through the one is would review of the issue before the court effectively unraveled the preclusion and  don't know if the statute bars review of methodology and someone of of estimates and someone says well reviewed the methodology used to review the estimates and you can't untangle one from the other writer on this doesn't have that problem right the set of issues that would come up under the ballots but you are not in any way shape or form coextensive with the set of issues that come up under the p s p plus six percent calculations in the medicare statute so you don't have that problem i think it's a matter  interpretation of the preclusion of review provisions because again we think that section is most naturally read to preclude a review of the ultimate reimbursement announce that are paid to the drug that under the section if that were the case in american chemical labs would have come out differently because that t to people who aren't even some risk seeking payments under the medicare act and extracted data from them and so it was it was just seen as a different statutory activity and so to hear for the read to mean that congress wanted to preclude further disputes about that ultimate reimbursement determination but as we know the brief here because the very minimum present hasn't been satisfied easy to determine in the st instance when it's presented with a ultimately would be resolved or i don't know the end of that year i don't want to get out in front of what the agency would say if it were presented with a concrete quickly any idea of how big i mean even theoretically it could add value in terms for the purposes of decid don't want to demonstrate my lack of knowledge of by trying to give it to too much civics but second even if again as i mentioned earlier an agency doesn't have particular expertise or even boring to address a contention that representatives of the house and senate and i said i do not think so but i've been advised that that did occur so i want to that under no four we satisfied that provision and the other the other issue i want to address is reef that that providing water right to congress that an individual did not have which is that night and i really got me was skeptical one hears water which is  a one is narrow were in the sense that the focus of the challenges on an order and a two is broader in the sense that the focus of the challenges to the statute as a general matter challenges to statutes cannot can often be brought pre of force when it challenges t orders almost by definition or post enforcement or at least post order so it seems a little unlikely to say that that distinction between one and two is that one governs anticipatory challenges and two governs existing t two applies after the orders already in place i know i understand that but i just wanted to point out what i was referring to and also i think that in this case where congress was very much aware through communications some of which  complaining was aware of this issue that was brewing and that the budget back balanced budget act would give could result in exactly what did result certainly a party like community college you couldn't have gone in advance and said we think this is about to happen please enjoying it where is congress would have that right under a one you know think under  before any sequel stray ssion order had been issued that you could have filed the lawsuit you're filing now and saying and said he title two is some constitutional because it permits the executive to override otherwise binding statutory formulas well in terms of as applied challenge or not sure that we could have if nothing had happened whether we could make a facial challenge is a question that i probably haven't given enough consideration to the heartland