procedural posture here is actually rather convoluted but ultimately the district court purported to be applying rule twelve b six in its dismissal order in this case that you are a motion or or authority to indicate that well your honor i have seen no case in the circuit where it was evaluated at that time frame like an injunction isn't it and there is an equitable component to it there are  other procedures that are a stop and you're asking us to issue an order and it in the agency to act and the complaint does yes that is not the purpose of this appeal the government filed a rule twelve b one motion to dismiss for subject matter jurisdiction we briefed that motion under rule twelve b one there is a very simple three factor test for determining whether jurisdiction exists the district court found that there was subject matter jurisdiction and therefore denied the rule twelve b one motion but decided to can to reconsider the government's brief under the rule twelve b six standard and under that standard purported to to dismiss the complaint and he did so without asking for any further briefing mandamus really i put my excuse me complaint  cape fear had sufficiently alleged for rule twelve b one purposes but the medicare act creates a clear duty on the part of h h s to hold a hearing and render a decision within ninety days of a timely filed medicare appeal and that the stain same statute confers on cape fear a clear right to have its medicare appeals heard by n e l a l j and decided within that deadline the district court then later in its opinion found the cape indicate that the federal court should you know grant main damus relief i thought congress set forth as a remedy here if you are having a difficult issue with ministry to process  that the remedy is simply to jump to the next step and to escalate rather than to come to court with a petition for mandamus your honor to come to court eventually if you want with i suppose if you want to appeal a ruling of the appeals council only if you waive your due process rights your honor and escalation as the district court did find and as is not on appeal here as collation was properly applied in the complaint to be an adequate to remedy the statutory violation that is at issue at the escalation provision requires you to waive your due process rights and it does it is not right if you like are you required  way you're required to waive your right to a hearing on your medicare appeal well this this i assume out of the wreck because you have a right to a hearing independently of escalation before qualified independent contractors know you well you have a right to submit some additional documents you also have to go to court that's the ultimate other words you have a claim and congress said you have to exhaust your remedies in the agent if you if you do exhaust and you can go to court and then it says you can exhaust them by this default process and go to court you have a judicial claim in court for this amount you want your honor during it we cannot present evidence in the district court that could have been presented at the a l j hearing once we get to the district where we are limited to whatever record was in existence us right who did you want the district court to mandamus the secretary of the department of health and human services ok well what did you want the who are we want to we're going to require the district when it gets to the end of the line here to mandamus the secretary of health and human services to do what to to comply with the statute and give cape fear eight hearing before an l j on it's seven hundred sixty two appeals within the ninety day deadline provided by statute but but that's not compliance with the statute because if the you know gerry doesn't make a decision within ninety days the provider then takes the case to the appeals council which then has a certain amount of time to make a decision but that's the remedy your honor once again i would point out that the inadequacy of the remedy is not at issue here the district  your your complaint in that you don't like the process congress set up this default process congress didn't give you an absolute right you take out those words say we have a hearing within ninety days but you leave off the fact that if you don't get it ninety days you can go to the next level if you don't get it and that my days but ultimately congress gives you a remedy in court if the issue is discovery evidence you can put that in the very first instance before the hearing  actually your honor no we can't because we've never been assigned a hearing officer to put it in front of the the the agency here who's the agency representative before the your honor it varies by case  case your honor there are seven hundred sixty two cases it will vary in each of those seven hundred sixty two days on your claims before those persons in each case at what stage on or at the a on a first date or second stage before you get to honor we laid this out in our complaint are i'm asking you a question my question is did you put the evidence that you had for your claim in before the agency at the lowest levels yes your honor and then they came back with a decision that was completely different from the one we were appealing the matter you can appeal it but then at the next level we're not being given an opportunity to put in any evidence from there forward no you don't need to put in that bench you had the opportunity in the first instance to present to the agency and have the court rule on the record make may i give your honor the example here and this is what we played in our complaint we had racked up that matter what you played in your complaint right now what we're talking about is you're trying to reform an agency process that was set up by congress and get you to court congress get you to court and you didn't take that route you're trying to bypass that and have lost or the secretary to direct somebody i know who's going to  q and we've alleged that in the complaint as well what we have here is that we have seven hundred sixty two cases which we have not been allowed to put in evidence relating to the exact reason for denial court ultimately the due process and it does your honor it does not let us get to court and present our case it allows us to go to court where and we have tested this process by the way your honor we have three cases right now pending at the honor but the here's the problem is that in most of these cases the racket denied the claim initially because they said there wasn't a pre admissions screening form in the file we submitted the pre admissions screening form at the q i c level  questioning the medical judgment of our physicians at the q i c level which is what they are routinely do it of your medical of physicians in there put the client with the bills put the justification in there and that's going to be the record they're not going to look at it again because they you're supposed to do it but your honor there is nothing within the regulatory rules that require that the way this is supposed to work is that the rac auditor makes the finding a new challenge that finding that q i c level yes the q i see can then go back and do whatever it  what that does is you're asking us to to catapult you to the very near the line and while that might be an appealing prospect for your client it does is necessarily an appealing process for the different providers who have followed the administrative subpoena that congress set out and i might not like it if you jumped ahead and didn't follow the administrative scheme and suddenly will bump the head of everybody else and that's not the way it's supposed to work your honor i am out of time may i respond to that question  first of all your honor the notion that there is a an orderly line here is is false and there is irrefutable evidence of that my own client has received three a l g hearing notices and they were not the first three cases my client filed my client has seven hundred sixty two cases all filed at around the same time only about five hundred of which have even been docketed so the notion that there is this orderly line in the my client would be vaulted to the front of a simply false so that's that's the first thing the second thing is that congress did not set up a process by in escalation by which my client gets a remedy what they did was they set up a process that ensures that people do not try to on day ninety one run into the district court and have a full trial on their medicare appeal hearing before a district court judge on the basis that the secretary has now been divested of her exclusive jurisdiction there is no remedial component of that provision and in fact congress didn't call it a remedy it called it a consequence and with that your honor i will it was there further questions  thank you your honor may please the court joshua salzman on behalf of secretary burr well i think the important starting place for this is to recognize as this court seems to that this is a mandamus action which is an extraordinary form of relief the agency is i think everybody agrees here horribly underfunded and understaffed the end result is that i'm massive backlog has developed and the agency is working hard  to work to identify a political solution to what is really inherently a political problem clearly a tick a congressional problem but what what would be wrong with let every one of these people go to court and while their papers in or hospital is stuck with the record that is formed on narrower bases that they want they basically want reimbursement ren and so it seems to me to be able to put in the documents  justify and reimbursement under the statute at some point should be universally allowed in other words not just if i understand  what this particular client is this particular hospital is doing it's responding to the agency's observation of a deficiency and at some point they would like but the whole claim as if somebody is looking at de novo i mean that the amount the doctor's opinion it's reasonable to say that in that time absolutely your honor and in fact under the statute that's supposed to happen at the second level overview of the q i see stage if you look at forty they look at the whole claim again and they deny it for some other reason and i understand that too i think the the idea of responding if that's the last place under f f b three that you can put in evidence if i were the lawyer i put in the whole client i get put in the stock of the whole claim right then yup and then moved quickly up to court but it says except for good cause is the fact that you've got such a big backlog and i'm not a able to address that as an agency matter because i'm funding them resources is that good cause to allow the court to hear that evidence for the first time well i think there is one other level of review here that matters which is there's board stage that fourth level for a few before you get to court and let's say you're stuck and i don't know but but you can in let's say you're stuck at the third level for you and it's a case where the set the second level overview turned on an issue you didn't you didn't anticipate when you submit your escalation requests to go from level three to level four you can also try to put in more evidence at that stage too so you do have the ability to stop at a scale doing the any provision that limits your talk about th appeals board i'm talking about the appeals court i mean you need good cause but if there was a grounds for decision at the second level for a view that sort of came completely out of left field then i think you might have a boss argument for goodness sake in you as you can be old a dministrative record before that you absolutely are on or you can not only can you you must there that's typical of all sorts of agency processes where you build your  you build a lot of home you build a record sometimes before hearing office or sometimes before in a l j but my problem was with this form of relief it's request with  finally get in court and when you go through all these stages my goodness if you have a chance to go before q i see in these over levels and finally in court there's no doubt there's no default of due process rights no infringement of due process right or i couldn't agree more your honor i think all of that is completely correct and the only thing i would add to that is the other point that i think was was made earlier which is this idea of wind jumping which is if you have the  mandamus not only are you sort of deviating from the scheme congress invasion when it sets forth an escalation is the consequence when the agency doesn't meet the deadline but here you're what they're asking force potentially really an equitable to everybody else who's been waiting in that what you say sounds sounds totally consistent with the statute with the doctor of course because of the agents in this case we have an agency that's broken because of what you said for political reasons we don't have the funding we don't have the personnel and the political branches probably trying to address it together with the second branch but what do we do as an enormous force to spray sion with these health care providers trying to get reimbursed and not get reimbursed i mean it could mean their livelihood it's a lot of cash they get stacked up but how is there any way to address that i think there are limits to what can be done under the current scheme is congress laid it out i would note that they've had two levels of review already it's not that they've been totally without process so they've had two different people look at it and say if they've got court that's right but if i don't govern by the third branch act it's a jump from the second branch of your branch and at that point they've got process and apparently what you're saying is they've got the ability to build the record i think you i noted in our brief asked to triple that this is you've got a unit the office of medicare hearings and appeals is a discrete subunit with its own line item budget appropriation congress said this is agency gets eighty two million dollars a year the president's budget asks to triple that amount to sort of start trying to to work through this backlog but unless congress authorizes that there is legislation before the senate right now that would give one hundred twenty five new million to a million new dollars into the of somebody started making a claim now how long will the backlog be so there's about to go north of eight hundred thousand claims pending and at current funding levels the agency can decide about eighty thousand claims a year so ten that's ten years yeah which is obviously not at all what congress invision do it's not at all what the agency wants but they just are doing what they can with the resources they have the problem the problem here is not that there's not a problem the day be filing a petition for writ of mandamus for them to have hearings meanwhile of a scheme established by congress is a wreck and the efforts to try to reform that scheme through additional resources in appropriations is kind of derailed will put in a put in limbo the point is it's not just a case of putting one person it's the other the law is the point is there's no limit what the role they're asking you for is anybody who sues gets to gets the next hearing and the eight hundred thousand number of the number of litigants of the number of claims it is my understanding it's the number of discrete appeals but  this provider for example claims that seven hundred sixty appeals in the backlog i am afraid i don't know the number of if the panel has no further questions i thank are i just want to address some points that were raised it during mr saltzman argument and first of all in response to your question about what can be considered at the da be level although yes there is a mandate in that circumstance facing a broken agency you've heard it you know what you've experienced we have short blonde and we don't want that we have all these thousands of claims and of course if we granted your relie transfer and all those claim from the agency to our court which doesn't solve the problem any better again it seems to me that the creative warring would help you some to take advantage of the process which would be to load up your everything you want to put in the district court put it before the queue i see just in a package send it in and have it there and then defaulted all the way up to court and to a summary judgment it seems to me at least you'll get that and you can push it depending on the on the speed of the district court but to reform the agency process with a writ of mandamus that treats you as an individual different from everybody else in the process is really it's extraordinary what you're asking your honor i want to be clear we are not here on this appeal asking for a read of mandamus we had a complaint mandamus directing the secretary to you hear your honor that is not why we are here we are here we filed a complaint in federal court we allege the cause of action the district court dismissed complaint the district court had claimed to have bases for dismissing the complaint we have asked this court to do nothing more than to remain on to this case back to the district court for a full presentation of argument and evidence which we did not get in the district court below you get on them that really i mean if we make the judgement you can get rid of mandamus in case your honor that that puts the cart before the horse the way that federal civil litigation usually works is that you file a complaint the other side answers and that then you have an opportunity to develop and put in your arguments and your evidence that's all we're asking for here we are not here asking you to mandamus the secretary that is far above and beyond what we you can have your complaint you're not developing a complaint with facts we know the facts you know the facts the problem is you want to have a judicial order in a feeling with the process that is an agency established everything you asked for if you simply followed the process your honor no we could not have and we bit of that is the reason by the you could if you could have built the administrative record before the qualified independent contractor you could have put in everything you could have after after that level you are dissatisfied you could if you thought of something afterward you could make an effort to put it in with us if you will displeased with the way in which the process was moving you could have come to district court and appealed the ruling of the appeals council in district court or you could have even if they had moved within their time limits you could have escalated to the next step or two district court my problem is not that you know course you're frustrated and congress understands the frustration and that's why these bills are in there to to appropriate additional resources but it it's not that the problem isn't frustrated it's the particular way you've gone about it which just skips over everything and seeks a writ of mandamus against the secretary which is as i see it has the potential to make a bad we've just been talking about the last twenty minutes is what's in the complaint and it's not a fair reading of the complaint and that's why we're here and i understand that everybody thinks they know what the facts are here the people talking about the facts but if you with the best facts you can get the relief you're asking for you don't have a complaint and it's twelve b six is the right remedy your honor your honor once again i am out of time may i respon honor the the complaint states for example that this is not a problem of limited resources this is a problem that the secretary created by running a particular recovery appropriated too much of this particular health program and health concern and haven't appropriated enough for and we need we think you need to shift your priorities madam secretary and and be at your honor once again my time is that may may i respond everything your honor said quite frankly is is not our theory of the case it's compare it to the elements of mandamus and to reverse the district court what we believe was that just in improvident hasty decision the district court got caught up in the secretary's arguments about her limited resources that's not in the complaint we have to stick with what's in the complaint if she wants to argue about her limited resources we should have an opportunity to fully develop those arguments and have a real fight about it not have to respond to something that isn't even properly before the court on the rule twelve b one she's been given the tools that to actually remedy this entire backlog as we've legend our complaint she's been using some of them she's implemented a t r programs and settlement programs she has taken small bites out of it she just won't take the whole