the court thomas alan jones day for appellant family rehabilitation inc the question before the court is a narrow one did the district court have subject matter jurisdiction over any of family rehabs claims below the court did not withstanding family rehabs inability to exhaust its administrative remedies yes your honor that is the collateral and there's been a colorable claim of reparable harm so to your question judge really we have it we have asserted two claims that are collateral deprivation of procedural due process and the government's ultra virus inability or  rather refusal to comply with its mandatory statutory obligation to grant a hearing within ninety days those claims the basis for those claims is procedural as i said under the statute the  shall conduct and can conclude hearing and render a decision within ninety days there is no dispute that deadline was not met at past on january twenty second if the government was following its own rules we'd be done already there's no dispute what should take ninety days under the statute now takes anywhere from three to five years and there's no dispute incidentally that the violations that the agency and s have accused namely rehab are at most technical violations there's no question that these services were actually provided no allegations of fraud so when you look at the pleadings of these of these claims they ask whether the  rehab finds itself in that the government denies us and a l j hearing within the timeframe that congress has required while simultaneously recouping funds from us and driving us out of business whether that violates the constitution or the other or is ultra virus these are premised on an entirely different set of facts and issues than the underlying administrative dispute they do not determine concern whether the payments were proper or whether administrative extrapolation method by the government contractors was flawed whether family rehab may have made clerical errors none of those are at issue here and that is the analysis in matthew that's the an the city of new york versus bowen and most notably that is the analysis in the d m g holdings case which was described at length in the district court opinion and as we noted in our reply brief was agreed with by a panel of this court including judge smith and judge owen on a related mandamus proceeding in the difference and in response the government relies primarily on the affiliated professional case  which held that the the claims there were not collateral but a review of that case demonstrates why those claims is the fifth circuit recognized required the would have required the court to dig into the merits of why that providers privileges were being terminated this was a terminations case and the provider was asking the court to rescind that terminations as well as stop the withholding of payments so in in according to the terms of the the provider's claims that was absolutely administrative according to the government however if because our claims are related somehow to the medicare statute they are administrative in nature and it seizes upon that phrase from affiliated professional but we submit that over reid's affiliated professional if any claim arising from rights under the medicare act were administrative in nature then everything is administrative in nature and that erases the distinction between collateral and non collateral claims so we submit under the d m g holdings analysis as well as the first family rehab met that prong to establish that it does face irreparable harm while it languishes in perpetual administrative limbo going out of business is a cognizable interest that was the observation and the ruling in the by this court in holdings but we did more than that we talked about harm to our employees harm to our patients some of which has already come to pass some of which will come to pass further if we are finally driven out of business now the government in response tends to trivialize that harm and saying oh well you're just going out of business but as we said that is something of harm that the court takes seriously and can view as irreparable particularly when coupled with other alleged harms the government's other principal tactic is to invoke the mechanism of administrative escalation because the court knows that is the mechanism by which a provider can skip ahead from one but that's not an answer and escalation is not an option it is not a mandatory requirement for us it is an option for the provider it's our choice and we chose we did not choose that choice because of the consequences of escalation first we would skip from the third stage to the fourth stage the appeals council but that is backlog itself i think the last time we checked there are at least fifteen thousand pending appeals at stage number four also at stage number four we don't get the same process there is not the right to a hearing the way there is at the a l j stage hearings are only granted under extraordinary circumstances and that's really the rub here as collation requires us to forfeit a right the congress has guaranteed us a right to a hearing before an ale j and why is that important because that is our best chance to make our case it allows us it gives us the right to  hearing before a truly neutral decision maker where we can present live testimony for example providers would may call clinicians to walk the ael j through the medical records and explain why the purported technical defects don't really support the contractors conclusions about overpayment and so it's not a surprise that the reversal rate at the a l j stage  materially higher than it is at the first two government contractor stages there are all kinds of statistics out there but the d c circuit was right when it a knowledge that that reversal weight was hardly negligible a quick note the government also faults us for not pursuing a payment plan which is another option not a requirement for us but this is no answer either first it ignores the fact that the government doesn't have to recoup these funds that it chooses to do that so it is its hands are not tied here second the longest payment plan is five years long that's there's no dispute about that and we made clear to the district court that we couldn't we couldn't float a given if there's any reason to believe the provider might go out of business we've said very clearly we're going out of business if we can't get at least a chance to get it to a nail j i'd like to switch gears and address briefly mandamus the district court was also wrong to conclude that mandamus jurisdiction was absent because family rehab couldn't exhaust its administrative remedies but exhaustion is not part of the jurisdictional test in this court and walcott is really the lead case here and it makes clear that the test is only whether the action is one to compel an officer to perform an allegedly non discretionary duty we certainly made that clear to the district court  explained repeatedly page three eighteen of the record for example that the government had failed to perform its non discretionary duty to grant a hearing and issue a ruling within ninety days we pleaded mand jurisdiction in our complaint and at the hearing we asked for the ninety day deal that was very clear to the government to the to the district court and and we make clear that we were asserting that the violation of a non discretionary duty the government doesn't even really seem to dispute that this is a disc this is anything other than a mandatory duty and again the d c circuit opinion in american hospital association twenty sixteen explains why the statute section thirteen ninety five f f d one is separate from the jurisdictional question here and it's an inherently equitable remedy so that the district court could have flexibility in our view the district court might have a couple of options i don't want to  try to predict exactly how that will all go it might go on remand but the district court could order the ninety day hearing or it could say all right government if you're not able to or willing to provide that hearing despite congressional congress's clear command then stop recouping and you know that might be another way that the district court could go i agree that given the systematic problems with the medicare  system you know we are one of thousands and thousands of of providers who've been caught in this system and and so it doesn't present an easy question on remand but i would submit that  that would be that's that's the the proper place to first take it up but i do think the court would have some some flexibility there so worried about again about the mandatory nature of the court of the government's obligation to provide this hearing escalation again does not make this any less mandatory again the d c circuit discusses this escalation is an option to providers and it merely is a an acknowledgment of the consequences of the government's noncompliance but that doesn't undermine as the court said the force of that command and particularly here given the widespread problems that you pointed out there's no way that congress viewed that and and so we don't think that there's in any event any basis for the court to affirm on that basis on the basis of the purported pleadings effects that the government has argued in its brief in the time i have left i would just like to  say a couple of words about the illinois council doctrine and the starting point there is is the max med opinion that was recently issued the judge owen was part of the panel it correctly diagnosed this problem it acknowledged that this is a profoundly broken system in which many providers have no hope of ever finishing the administrative cyclists cycle that's supposed to take about a year start to finish and now is taking multiple years even by some estimates a decade so it's  denies providers just like us the process congress guaranteed now the government says well that's just only so much delay and it ministry of hardship but here congress limited the duration of that delay and hardship and so under that rubric and against that context we cited this doctrine if the court has no more questions i will get back the balance of my time  thank you your honor may have poise the court the district court did not error in determining the jurisdiction was lacking for the lawsuit filed by family rehab and i'd like to first address the issue of whether these claims were collateral there's two in particular why these claims were not collateral the first is the district court correctly looked at the actual relief that family rehab was seeking and that relief was in the nature of essentially requiring medicare to turn back on certain payments administratively and as this court's decision in affiliated teaches when a relief is administrative in nature that is not something that's considered collateral now second in the affiliated professional opinion the court went on to say that additionally the provider in that case was also seeking relief that was mixed in with the merits of its decision so the court suggested that that fact that the relief was mixed in was an additional reason that the claim could not be cannot be placed in the federal courts at that time but sufficient alone was the fact that the relief was administrative in nature here though just like the claim in affiliated professional the claims that family rehab presented were also mixed in with the merits of the of the matter that is pending at the agency what would be an example of requested collateral relief requesting collateral relief while an example i guess would be in the matthews realtors decision itself which was where the the disability recipient was being terminated so we had a terminations which is not at issue here and there was the supreme court determined that there was jurisdiction to entertain this claim about when the hearing should occur now the supreme court i think was careful though and never in matthew's approved of the sort of action that family rehab is presented here and also in the versus city of new york case the supreme court was careful to note that the exercising jurisdiction in that case also involving disability recipients was respectful of the administrative process and that the district court had not ordered any claims paid here though we have the opposite which is that there has been and you know a request that basically this these funds be turned back on and if you look at it on page twenty five and twenty six of the record which is paragraph eighty one eighty two of the complaint this is the procedural due process claim itself that the count that is labeled procedural due process which is the count that they're primarily arguing here there's jurisdiction for if you look at that it says quote ordering the government not to keep out of those funds ordering funds to be paid i mean they would pay him anyway just the reason they're not paying him they're trying to record past issues is that really the same thing well recruitment recruitment  is the agencies saying we're not going to make payments to you until this existing debt that has been assessed against you was discharged so exactly even though your other wasn't told to them were often being stopped not ordering the government to pay to speed otherwise disputed medicaid or medicaid claims well i think functionally though it's it's the same you know it's the flip side of the court if you're saying you may not what you're then saying is therefore you have to pay and if you look at the actual proposed order that is you know submitted in the record that i'm a motion for temporary restraining order the order you know is asking the court to basically order the agency to make these payments and not require so it is if you're making a payment then you're you're not recouping so i think it's i think it's all mixed in together and affect that the procedural getting back to the point of in addition to the fact that the relief is administrative in nature which is one reason and you know by itself that this is not a collateral case there's also the fact that the claims are mixed in with the merits and for example paragraph eighty one eighty two of the complaint they specifically rely on the fact that they say their claims are and will be successful and therefore because their claims are meritorious in their view you know that the government and the court should intervene so they're relying on what they're asking the district court to find about the merits of these underlying medicare claims likewise in their motion for a temporary restraining order they argue that they were likely to succeed on establishing that their physicians completed the proper certifications in the proper face to face about you ation forms that are required in order to estab to payment so they asked the district or they told the district court we are we are likely to succeed on those claims and they asked the district court to find that they were likely to be able to establish that the physicians had completed the proper for the past for the past i need any problem ongoing in that there's a dispute as to whether they're in compliance going forward i'm not sure about that i don't i don't know that they're i don't know the nature of their claims that for example if they're if they're treating the new patient today and they've some of the claim for it i have no i don't know if there's if that's been reviewed i know nothing about the forms of so it could be that the government would pay it and so there's not a problem at all it's just we want to get our money yes you well i think it would change the said you're not making the government pay it's not clear to me at all that you're making the government pay something they wouldn't otherwise you're just saying you cannot proceed with recoupment until there's a hearing i think i understand the point but the but the recruitment essentially the government the recruitment exists and so the by by nature of the recruitment there are not going to be payments made and so the government is not going to make investments and so if you  say if the court enter some kind of order forbidding recruitment well that but this the whole system is you're going to get this resolved in ninety days there were it's hand in glove supposed to work so that recruitment doesn't could go on for two or three years and put you out of business you're supposed to get a ninety day or that piece of the of the was a five step process is found so tight money dies and that's not happening there's a so there's a four step process congress has specifically spoken on the issue of when recruitment can occur and congress has basically said there's not going to be recruitment at the second level of the process and the agency so basically there's no recruitment during the first and second levels of the process congress then has not prohibited recruit recruitment from occurring once you get past the second be over ninety day that's true so the statute does say that the ale day is supposed to hold a hearing and issue a decision in ninety days but in the exact same statute that they're relying on for this ninety day requirement and we don't dispute that there is a ninety day you know in the statute it does say that in the same exact statute though it also says consequences of failure to meet that deadline or something of that nature and congress anticipating this sort of situation as specified what the remedy is and the remedy is that this escalation option then springs into existence where the provider can choose to escalate and proceed through the system congress again it's all in the same statute where issues like recruitment and the ninety days is dealt with congress did not say that a and they could have said that they did not say that a failure to meet the ninety day deadline means that we're koopman has to stop i didn't say that congress also did not say that you know a failure to meet the ninety day deadline or a threatened failure to meet the ninety day deadline means that a provider can immediately come to federal court in attempt to obtain some sort of interim relief in fact congress said that if you don't meet the ninety day deadline for an  l j and then also and then the provider escalates then upon either receiving a decision from the final step which is the medicare appeals counsel or escalating from them if they don't make a timely decision at that point the provider can then go to federal court can can you know jurisdiction exists at that point so i think by you know the fact that congress did not you know if congress knows how to specify how and where is that the provider gets opportunity to put on evidence and have an  hearing if they ask like yes your honor there's so so if a provider is is thinks it's not going to receive a nail day hearing within ninety days and wants to preserve that evidence or several things they can do one essentially would be no different than if an ale jay did hold a hearing and for example in this case there was a paper review and they said look we've asked for your records and you have not submitted to us you know the certification form it's not here we can't pay you without the certification if a male j said i'm not going to listen to this evidence about what your doctors are saying because it's not relevant to the issue of whether or not you have the certification form so you can imagine a situation where they'll judge said i don't want to hold a hearing or knocking on or saying this evidence it would be the same and in that situation if family rehab believed that this was erroneous they could create a record they could make an offer of proof they could submit written declarations or written testimony they could videotape their witnesses you know under under oath in a deposition type setting and submit that video to the agency then after escalating they could they could invoke their escalation you know options they could proceed to federal court in the manner congress is in to submit it once in federal court that evidence would be part of the record and they could certainly argue that by failing to hold a hearing in ninety days or by not allowing them an opportunity to present that evidence at that point the evidence would be in the record and they can make arguments to the district court that this then was an error and that the district court should then craft some sort of whatever appropriate relief there would be and it would be at that point that is the point that the district court has jurisdiction under the system you know that congress set up as if they take that route  take it would take approximately six months i believe and under this current under the current circumstances right so so they could escalate away from the l j now you know as of when they filed the lawsuit it was only about seven days after they had requested their l j review so the ninety day period is now expired so they're eligible to escalate now so tomorrow they could send medicare or send mail j office a if they don't act timely then under the statute the provider could once again escalate and that at that point you would be in federal court so i think what the district court says is that they could be in federal court within ninety to one hundred eighty days it's in the district court's decision and we don't dispute that they could be in statistics are on the fourth period how backlogged a mighty and i'm not disputing that there may be some backlog at the fourth level i don't think it's anything like at the ale j level but there may be some backlog but if there is a backlog you know assuming there is there's also an escalation option so you can once the period of time for the fourth level expires you can then proceed into federal court just like you didn't escalate from the ale jail also and as counsel mentioned it i don't think we  fourth level is the medicare's appeals council and there are i think unlikely to hold a hearing so they're not there's no issue there's no contention that they would actually have a hearing with oral testimony but what they could do is put all this evidence in the record now escalate and they could then properly be in federal court you know within essentially the anticipated periods under the statute because you'd either have a decision within the ninety days or you'd immediately escalate so congress has spoken to this issue you know congress it's absolutely true that congress you know put these ninety day deadlines in the statute but it's also absolutely true that at the very same time they did that they created the escalation provision and they did not allow for for providers to come into federal court immediately upon you know missing a deadline at these intermediate stages and why would you know you know this is congress judgment about how this massive comprehensive system of medicare is supposed to work and it's a big system and there's a lot of things going on and there's you know congress makes decisions on how best to do this and what congress has decided to do is to delay federal court jurisdiction until after you know the completion of administrative process and they've built in things like the limitation on recruitment during the first two stages they've built in things like the ability to request a repayment plan which they simply have unilaterally disk declared that they're not they're not even going to try to get one of those that's something that congress has put  temper this notion that there's going to be a period of time where you know monies were troops or you need to repay money so what family rehab is essentially asking to do is to come in and energex a federal court into the middle of this process really have had its way you have a district court come in and essentially prejudge this issue about whether the proper sort of occasion for them whether the appropriate paperwork is in the file and that's the sort of thing that congress you know does not want to happen because congress has delayed jurisdiction so the claim is not collateral it's intertwined you know it's interesting mind with you know the merits of of these claims for payments it seeks administrative relief i w briefly mention mandamus counsel relies on the randall walcott decision the jones v alexander decision which we cite in our brief is an earlier decision so that would actually control to the extent there may be some conflict i don't think there's a conflict i think that the court has been has been clear and jones or says alexander there's a subsequent decision that we site called mirroring go versus move k z where this issue of failing to mandamus is just is not available here in the at least in the form that they've requested in their appeal brief they've requested a writ of mandamus to require the agency to hold a hearing within ninety days but the have sort of unanimously rejected the idea that you can offer this individual mandate mandamus relief and for for the reasons alluded to you know it would simply it would be unworkable across the entire program it would it would move one provider to the front of the line and then encourage all the other providers to do the same thing and at the end of the day there would be no net gain so it was certainly not error for the district court to say that mandamus was not available in this case and that's particularly true because if you actually look at the complaint there was no actual request for mandamus and you know they've tried to characterize this as a pleading a technical pleading defect but it's not that the cases they cite are cases where a party you know for example either request leave to follow an amended complaint in the district court and is denied and then on appeal this court says no you should allow them to amanda or their faces one of the cases they cite is a case where the parties cited admiralty jurisdiction and they really should have been proceeding under the outer continental shore act and this court said ok well you can basically switch out your allegation you know you can you can go in and amend your complaint to to do the correct statute that's not what we have here w have here is an attempt to essentially recast their claim and the nature of the relief sought entirely and it's essentially occurring for the first time on appeal in particular in the reply brief but i don't think that's a barrier to this court affirming because well you can understand their frustration and delays that are now in the system that congress we assume had not anticipated your honor i certainly do understand the frustration and i'm not trying to minimize they've sort of said that we've been dismissive of that and i'm not and we're not we we recognize that there's an issue here and in fact the d c circuit has now had two appeals and there's  litigation in the d c circuit about what if anything courts should do on a program wide basis to address this issue in the agency is working in that in the context of that litigation and also just on its own to try to come up with a program wide solution and also working with congress and that's details in our briefs and i think this court in the recent max med decision noted that you know congress essentially there's been requests for more funding  so again i'm not trying to minimize anything for any provider but in the scheme of a huge program like this there's just no basis for granting the very individualized really really if they're seeking what what do you do about the question of irreparable harm in terms of an entity that says let's assume they say it in good in good faith that they're going to go out of business because of the delay's well your honor i think that there's you know this court has talked about this in the for example the physicians hospitals case where the the anstey said the only way we you know we're in the middle of this thirty million dollar projects and there's maybe that that entire project is essentially illegal under the medicare statute and we need to be able to test that by you know basically coming to court now and what this court said is basically sorry you have to you have to exhaust and that's the system that congress created so there's no doubt that in some some cases it could be you know that there's these economic injuries but the same time this is what congress this is the way congress is structured the system and congress has also provided things like repayment plans things like escalation to alleviate that so i think where they haven't even by their own admission they've essentially refused to engage in any of those processes that congress has provided and i think they haven't shown are up for harm here so thank you and i thank you mr  thank you your honor just a few points first the government says that we are not trying to be respectful of the administrative process we are we're trying to get review not evade it with regard to their discussion of whether our claims are collateral and they take issue with some of the briefing in the district court i would offer of a couple of observations first in the district court we were arguing a variety of claims including substance due process which we do not contend is a collateral claim this also occurred in the context of a lawsuit the lasted all of three days there was no rule twelve motion or any other discussion about that below but when you look at the procedural due process and ultra virus claims they are they are premised on a procedural problem the government failing to follow its mandatory statutory duty while still threat of threatening to recoup whatever answer to the procedure he described he made it sound like if he escalated you could resolve this in short order well and get to district and get a federal district court well what's wrong with what you heard him described as a couple of things materials both in the record and in our briefs and i think and i'd be happy to provide the court with any update i think we looked recently and saw that it was at least approximately fifteen thousand there fifteen thousand cases filed in courts mean that doesn't mean there backlog for two but that they don't have the capacity i think that's undisputed number that doesn't tell us how long the backlog is how long it takes in our believe in our opening brief we cited  sources that said that there was this enormous backlog and that the resources at both the a l j stage and the appeals council stage could not keep up and that's in so it could take anywhere from ten years to it even a decade for  suggested the appeals council as i understand it would still have one hundred eighty days to rule and so that would there would be another delay then if they didn't rule they offer the option of going to district court the appeals coun as i mentioned earlier also doesn't provide us a hearing and and as we all know there's there's really no substitute for a live hearing and the interplay of human beings explaining the questions at issue so there's there's almost never hearing only under extraordinary circumstances at stage number four is stage number five yes you can find yourself in district court but that's not a dyno vote proceeding that's reviewed under substantial evidence and it's limited to the administrative record so that's not a substitution for an  jake here in either the ail day hearing is what congress guaranteed us and it's really what we want here and we just can't get it in the in the in his discussion of whether this is collateral  said that part of the relief that you're asking for is for is for payments to be resumed and that for that reason it's not purely lateral or maybe not collateral at all would you address that and so what they were asking the district court to do was was enter an order telling telling the contractors c m s in the agency not to start recouping at all that's what we asked the court to do a s so the consequences are grave for our client but i must say i take issue with the notion that these claims are collateral are not collateral and i submit if i can finish my answer your  honor just a sentence you may they're not collateral because they don't require and they would never require the district court on remand to resolve the underlying administrative dispute they only address the procedural  we find ourselves in because the government won't follow its own rules thank you thank you mr allen your case is under submission