secondary payments to medicare beneficiaries and private cause of action hasn't been amended for thirty years and it doesn't say anything about who can sue let alone who can be sued and this act was over the m s p act the medicare secondary payer act came into existence seven years before the private cause of action did its express purpose was to protect medicare trust by making medicare payments secondary to all other available insurance tortfeasor or other primary payers as defined by the statute was let's just take this one step at a time now that and so there's an anti assignment provision in the hospital services agreement providing that f h c p original interest may not be properly assigned looking at the hospital services agreement and specifically states quote maybe or party may have signed this agreement in whole or in part without the express written consent of the other party earlier this agreement shall not in the word of the benefit of any successors an in terest without the express written consent of the other party unquote so i was there standing but there's a few responses that question your honor first of all that's not even an issue on appeal there was no cross appeal of the court's rejection of the anti assignment argument under the services agreement by the happily moreover  standing question so it is on appeal it's always here well them will go further than the services agreement was not assigned rights of recovery arising under federal law were signed of provisions typically do not pertain to the assignment of rights arising under law they apply to prevent the contracting party from being subjected to performance of that agreement by a party didn't agree with non party to the agreement this kind of assignment exists commonly in commercial law you see it an awful lot and i trust cases where one party has assigned its claim to someone who becomes the eventual plaintiff moreover the court's decision on standing had nothing to do with the services agreement which you rejected out of hand as applicable the services agreement by itself says that states that and it's plain that that agreement attempts to opt out of a provider's obligations under the regulations for you to see if or for eleven point two four and forty nine point t zero which was expressly adopted to make providers who receive secondary payments subject to liability to return them because what providers such as  billy typically did and do is bill everybody and there's no way for an m a o or the government typically to find that a provider's been paid twice second problem that you have as us the it is the clear language of the statute section thirteen ninety five three a  let's take a look at the statutory text b three eight in its entirety in the middle of this huge government project that involves the m s p act within the medicare act a huge set of regulations  understand that but statute the question judge wilson asked is the statute is clear it says a primary plan which fails to provide for primary payment and warrior it doesn't say or now does it says or appropriate reimbursement sure but it all relates to the primary plan a plan i marry plan which fails to provide for primary prey men or appropriate men in accordance with and this case is a case in which the primary plan failed to provide for appropriate reimbursement just as western heritage and you should assume the primary plan except that the statute which says nothing about who can sue and says nothing about who cannot be sued cannot be out ambiguously construed to bar a private just that it is an ambiguous it says you have a private cause of action in the case of a primary plan which fails to provide for it tells you exactly who you can so you have  private cause of action for a primary plan that fails to provide for primary payment and won't let me let me ask this because if you look at the government section it allows them to sue providers so congress knew how to do this and they did it for the government but they didn't do it for private cause of action that makes sense right because they want hospitals and doctors to be free from a lot of the suits that they're not as worried about with insurance companies so they set this up so that the government could and the m a o could not you have a very different language do you agree with that no we don't this statute does not enter an ambiguously say anything about who can sue which is what the western heritage court referred to the regulations to unambiguous the question is is the statute ambiguous statute is ambiguous this court's decision western heritage resorted to the regulations in order to determine who can sue and whether an m s n m a o such as appe could have a cause of action in the case of it doesn't even western heritage says the primary plan it doesn't say against the primary plan and the language of the statute is in the case of a primary plan that fails to make a primary payment or appropriate reimbursement either condition triggers that statute the question on appeal just as the question below you don't have any circuit we don't have a new circuit law we that says the statute is ambiguous we have this circuits law that resorts to the regulatory interpretation in western heritage and in the allstate case of those district court cases those are your courts cases where the statute is a they don't come right out and say the statute is ambiguous in this regard they do however obtain guidance from the regulations in both cases in western heritage the court after stating that the cause of harm caused by a primary plan's failure to meet its m s p primary payment or reimbursement obligations and just say primary payment obligations are and only one who has a primary payment or reimbursement is the primary plan under the statute that's all it says except that the the private cause of action expressly incorporates provisions that are not within it and in deciding what's in heritage this court incorporated another provision or western heritage was about who an appropriate plaintiff is where it's not clear from the text it was about who is an appropriate plaintiff whether or not and males have parity of recovery rights with right medicare that's what it was about and it was a case in which the primary plane had made a primary payment but it hadn't made appropriate reimbursement and the court goes on to state that even if that plan had made a primary payment it would not extinguish the emmy goes rights under the private cause of action to demand appropriate reimbursement from the primary payer this case is exactly the same situation we could have sued all state under thirteen ninety five why three a because it's never made appropriate is never made any reimbursement and under the plain language but western heritage allstate would be subject to liability for double the amount of the secondary payment plus i see him running out of time actually i'm over time so are but let me ask you know the question let's go back to standing for a minute what did you allege and as an injury aside aside the anti assignment provision but what is the alleged injury  purposes we have to admit your honor the complaint was rather in our fleet drafted and the injury alleged in the complaint was the failure to pay an amount that was suggested by the right to charge provision which has since been held to not govern the damage claims and we don't have to allege any measure of damages but if you take into consideration the government's the modification of the government's right of action against a provider which was never done in the case of the private cause of action i got you take that into what your money back so we said injury first we didn't get any interest that payment of the secondary repayment of the secondary payment by the provider was made seven months after the sixty day grace period expired right in assuming you're entitled interest where is that alleged in your complaint paragraph fifty four year and the plain fact is that that's not a fatal error we have standing under spokeo and moran skee because this is analogous to an ages old common law action for money had received we were made in voluntary lenders by the m s p act for sixty days to anyone that we made a secondary payment to after sixty days they had a liability to pay that money back i understand judge that they are says that can't be found in the statute the sixty days can either it just says the secretary may seek interest after sixty days it doesn't say that they have to pay right no it doesn't say that it says the secretary may seek interest that's absolutely correct but of course that sixty a grace period was hell that clickable to the claim in western heritage by this court and that provision comes out to be to be to not be to be won or any other provision that that statute the private cause of action to person incorporates moreover we'd also point out that everybody assumes that this claim is governed by a three year statute of limitations so this provision be to be to was an incorporated well this court resorted to it in all state to find the demonstrated responsibility requirement that it applied to the cause of action they used it to interpret it but it wasn't in court it isn't specifically incorporated by congress ri not ok but the court made reference to it just as it made reference to the the provision in b to b to that was it's a reasoning not a told and right well i suspect that it's fair to say that it is part of the holding insofar as the court held that after sixty days the primary payer is subject to liability for failure to make a primary payment or appropriate reimbursement that is part of the hol thank you good morning or ours may please the court alan lash on behalf of the apple e's from our perspective the district court got it right in all respects at at its heart i think judge wilson as you noted this is a contract case the relationship between our client and the m a o is based in contract and the contract governs the duties and responsibilities of those parties and this court has express recognized in the care improvement case and i know that well because i argued that case about a year and a half ago and this court made explicitly clear that with respect to a contract between a medicare advantage organization and and a provider like a hospital like the apple e that the medicare act explicitly allows contract providers and m a o as to define the terms of their own agreements without reference to the medicare regulations and there are very very few exceptions to that really dealing only with proper payment in short the contract defines all of the rights and responsibilities here between the underlying medicare advantage organization which is a private for profit entity it is not the government it is not c m s it is a private for profit entity and the agreement provides for all the services that will be provided by the hospital to the in rowley's in the medicare advantage organization it sets out the reimbursement terms it provides specific procedures for a refund of overpayments what about their argument that using cross appeal on the contract i think it's an irrelevant issue your honor i think as you pointed out this court on review can look at all issues and i think the contract issue was only looked at with respect to standing to was to assert the m s p claim i think that was the distinction that the court was looking at but at its heart this case is a contract case and what's clear contrary to what my colleague colleague stated in response to your question with respect to the primary plan the primary plan was all state the primary plan made payment in full so there was payment by the primary plan there was also a payment to the hospital and the hospital refunded that payment in full the refund was made within seven months of payment it was made before the assignment to the appellant and it was made to hears the repayment by the hospital was made two years before the lawsuit was even filed below so as a threshold matter there was no claim by the m a o at the time of assignment because repayment in full had been made and at the time the lawsuit had been filed neither the m a o if the assignment is invalid or the plaintiff had any claim because payment in full had been made there was no claim the repayment complied with the contract and clearly again this court has has made it abundantly clear that contracts between providers and private medicare advantage organizations are not subject to medicare regulations except in very very limited circumstances i next want to touch upon the m s p a at claim and some of the comments that council made and judge to address some of your questions the the western heritage case i think was was very clear in terms of what the cause of action that could be available to a prime to a m a o is the cause of action is very clear the statute is unambiguous and it provides is the western heritage court noted for three essential requirements number one the defendant must be a primary plan well that's not the case here it is undisputed that the hospital is not a primary plan the second essential element to sta claim under three a in western heritage is that the primary plan fails to make payment and the complaint at paragraph forty eight on him because you asli states that all state as the primary payer was billed and paid one thousand two hundred fifty one dollars and sixty cents to st mary's hospital so the second element is not met last there must be damage there must be injury in fact and again there was no injury there is no damage repayment was made by the hospital in full within seven months which by the way fit within the timeframe of the contract which had a twelve month payment of repayment of over for over payments or refund of or of that refund of overpayments or payment of under payments or the lawsuit was filed absolutely to more about two years before the lawsuit was filed the payment was made so there was no there was no cause of action available to anyone at the time the lawsuit was filed there was no cause of action available to the mayo and similarly there would have been no cause of action available to the government the government even if you could make this statutory connecting of dots argument the government would have had no claim either against the hospital because payment had been made in full there was no claim there was no damage so we believe very clearly that the appellant has no standing and equally important there is no claim under section three a of the m s p act i think it is completely inconsistent with statutory construction principles to suggest that somehow three a incorporates the government's cause of action in to be putting on equal footing a private party and the government think of congress and fully intended to do that it it knew how to it's not that complicated to say that the rights  co extensive the statute says nothing of the sort there are plainly distinctions between the government's cause of action and a private right of action and none of the elements of the private right of action are satisfied with respect to the appellant suggestion that c m s regulations somehow inform the court's decision again we respectfully disagree c m s regulations are only relevant to applicable to the extent the statute  ambiguous this statute is not ambiguous it is plain and it is clear and there can be no resort to the regulations to create a private right of action or a cause action where the statute does not provide for one and this court also in western heritage made that abundantly clear specifically noting that although the secretary of h h s believes that m a o s may sue in federal court to recover reimbursement from a primary plan o's have no cause of action absent a statutory basis and here the only statutory basis arguably could be found in three a and none of the essential elements for stating a statutory cause of action in three are met so here again we have a situation where a primary plan may payment as a threshold matter that defeats the claim we have a refund in full by the hospital within months after payment is made and i'll note without demand there was no demand that was made the hospital repaid voluntarily and the complaint alleges no demand and there was payment in full there was payment by the primary plan and repayment by the hospital with respect to the notion that interest conceivably could be the basis for a claim that argument two fails for several reasons number one the right to collect interest belong solely to the government number two and interest may must be it's voluntary it is not mandatory and number three there must be in a lecture meant that that was incorporated into  it is not incorporated your honor the only the only issue that is somehow referred into three is the reference to when the primary plan's obligation is triggered two to inform and interpret three a and that was with respect to demonstrated responsibility but there's there's i believe no way this court's decision and western heritage can be read to wholesale incorporate the government's cause of action entirely into three double damage double damages are are not available double damages by by three a in the statute would only be available against the primary plan only and i think your question to counsel saying couldn't defendant because the statute says that it applies only to a primary plan it is clear we are not applying a primary plan and the double damages remedy is solely with respect to a primary plan that's all it says so too and if we were to read the language from the government section from and any entity that has received payment from a primary place in the year section i know it's not there but assume we read it in then you would concede double damages would be a no i would not for several reasons number one if hypothetically we were to incorporate the government's cause of action into the private right of action the first step in that analysis and language is very clear in order to recover payment made ok under the subchapter well at the time the government or any other party could bring a cause of action payment had already been made so as a threshold matter the cause of action could not have been asserted because payment was made two years prior to the institution of the lawsuit below and b to also be three also references an action may not be arguing really is we're not the real party in interest not they don't have a right to bring this up as to standing not is to stash torii hunter i don't think i think that certainly we are not the right party in interest but i think it goes beyond that i think they have no standing they have no claim because the payment was made by the primary plan and because the recipient of the payment refunded it prior to any request for interest prior to any cause of action be initiated being initiated and the language in b three says the government may in accordance with three a collect double damages against such entity may but if there's been a repayment at the time that the action is initiated there is no claim at all there could only conceivably be a claim had there been no repayment at all but here we know that there's been a primary plan payment and we know that there's been repayment in full there is no damage there was and there was no interest that would accrue as that again belongs to the government and it must be made by election and we know that neither of those things occurred here and at the time the lawsuit was filed a payment had been made and in fact prior to the assignment to this point if below payment had been made so under any stretch whether you look at the three or if we engage in hypotheticals and assume certain facts that aren't are not true and contrary to what's in the record even under that scenario there is no claim there is no right to seek double damages or interest there is nothing there is no standing and there is no substantive claim against any under any statute against the hospital the this record violate our precedent in the mile versus unified national committee dismissing the claim with prejudice i don't think so your honor i think that we have a situation here we're worried complaint was filed first in state court then to the in the district court it was amended once it was a mended twice at this point we've got three or four strikes and at that point based on the allegations of the complaint based on the statements that were asserted in the motion for leave to file the second amended that though these this was it these were the facts in their entirety that the court properly determined that any further amendment has been you tasking has because we said no jurisdiction and with predators are mutually exclusive i think the court also merits looked at both issues it looked at the standing issue and it looked at the substantive claim and concluded that on a substantive basis the claim or without your stick you haven't already i think i think both issues could be looked at simultaneously i think this court in reviewing could look at the merits of the claim from a twelve b sixteen point and conclude that there is no claim and there could be no amendment that would satisfy a claim an amendment was for that proposition substantive standpoint and conclude that as a matter of law there is no claim that could be asserted there was no claim properly asserted and dismissal with prejudice is appropriate any amendment would thank you thank you mr las your honour's the contract is a red herring it provides expressly the conflicts between it and federal law resolved by reference to federal law the contract reports to change the deadline impose discovery obligations on a party that isn't gonna know that it has a right to recover a secondary payment because it won't know that a primary payment has been made  or overt let's just move on for a minute this is not a contract case we would i commend the court's own orders in in western heritage and all state as repeatedly making reference to regulations that talk about functional parity as a goal of the statute as a goal of the regulations and as part of this framework in which these parties trying to conduct their business  the court did incorporate more then three a says it expressly incorporates in both of those cases it incorporated or as just rip are said made reference to or consulted regulations and  government's own rights of recovery under b to be two to informants decision western heritage was a case in which we don't look at the regulations if we look at the statute and determine that the language of the statute is clear though that's absolutely correct on a boat one goes back to the fundamental question which this court raised on the front end in the western and which the paris plank court raised on the back and  the statute doesn't say who may sue it doesn't say who may be sued certainly doesn't say who may not be sued the only thing it says is that in the case in conjunction with the rest of the statute you do that before you ever consult the rags and when you read the government provision it's clear that congress added this language that the government can recover from any entity that has received payment from a primary plan or from the proceeds of the primary plan's payment to any entity same time they didn't put that in this provision and they put it in that provision we can read the difference there in the supreme court's commanded us to do so and make sure it has significance for act that's absolutely true on this cause of action was passed by congress ten years before him ayos came into existence congress was not clairvoyant it wrote a very broad and open ended private cause of action that would embrace all situations in which a private party made a secondary payment in the case of a primary payers failure to make a primary payment or appropriate reimbursement and in fact isn't this i'm sorry to interrupt you counsel isn't this an odd case where you got payment two years before without requesting it and now you're suing the hospital i mean that it just strikes me as like hospitals provide a lot of good services they serve the indigent they do all this you're dragging them through court for something they did voluntarily two years ago they paid you back next that they didn't pay back the interest and western makes clear that allstate is still subject to double damages liability and interest from then until now that's the plain reading of this cause of action three moreover western itself expressly holds that the mail and i mean it seems i've maybe i'm wrong but it just seems odd to me that someone who voluntarily pays you back you don't ask for it you sign a contract saying you'll you'll give them notice within twelve months they comply with the contract contracts and federal law co exist hundreds of cases there's eleven circuit cases that talk about this couple go ahead i'm sorry i want to try and break this down first of all this is not a typical case you're absolutely right the typical case is one in which the provider just keeps both payments and never says anything to anybody that was that they front case in which the complaint was sustained but interlocutory appeal has been granted that's also there was a case in the middle district recently that was dismissed on similar grounds in might have been a xerox of this court's opinion by that court the lower court's opinion that is where the provider simply kept both payments to this day on the theory that we don't have to pay you back if it was medicare we would but we don't have to pay you a nickel so you're absolutely right that this is a typical in so far as the provider did make a reimbursement of the primary payment but when we come back to the statutory text on which this case rests it can't be persuasively argued that a statute that fails to provide who may sue in fails to provide who may be sued on ambiguously excludes unambiguously plain meaning language construction excludes a class of persons who might otherwise be subject to liability under the statute we understand that mayo's didn't exist when this cause of action was passed but it's never been amended it has always provided for double damages from one thousand nine hundred seven until now and as we noted and as this court has said western heritage remains subject to live delivery to that m a o even though it made reimbursement because it now even though it made a primary payment because it did not make appropriate reimbursement which by the way was another term that was found in b two b two which speaks to the government's rights and was used to eliminate the language in b three a the court is correcting concluding that a lack of standing does not support a dismissal with prejudice moreover would submit that the what drove this dismissal with prejudice was the court's conclusion that the cause of action didn't exist  and for that reason the futility argument is a nonstarter if the cause of action does