decisions within ninety days of filing class a clean it has now been waiting three years and this is despite a statute that clearly entitles casa cleena to the hearings in ninety days since the district court issues its decision the again obtain some advantage that is not available to parties or individuals who don't litigate and second it cannot be the case that because everyone is harmed by the l j delay that no one can seek relief and that seems to be what the system you don't have to i mean you're you know there's a long long waits for these things you know the theoretical statutory that line you know the government consistently doesn't mean that participate in medicare that must exceed the audits that the government imposes on it and if it if the government denies claims then it is entitled to this administrative appeals process that steps that it sets out very firm deadlines and here the statute says the secretary shall issue decisions in ninety days and fail to give effect to that that's clear plain statutory language would be to disregard the will of congress with the statutory deadline in plain language and that was just what the ninth circuit said previously and the biodiversity legal foundation decision and which it and which it stated that the exercise of discretion is for close when then the rich should issue is there a way for us to go your way in this case without creating a split with the fourth circuit  circuit and have you seen any cases that reconcile the d c service decision in the fourth circuit decision no because i didn't in reading the opinions then seem to acknowledge each other the d c circuit and even though they're right next to each other that in seem to know  favor that other litigants might seek the might seek similar relief the presumption is that is that the secretary would take steps to solve the backlog that haven't been taken already and moreover levels appeal levels of appeal really don't function they're more or less rubber stamps of the initial auditors so if the secretary extra exercise more oversight over those first two levels perhaps there would be better decisions there and fewer appeals would make it to the l g level the secretary has settled cases with with other provider types the secretary could look toward other types of global settlements the  secretary could exercise greater control over his audit contractors we've discussed in our briefs the recovery out of contractors but there are many other audit contractors out there that are also auditing claims and do doing equally poor job in our congress and to supported that if this deadline would not be always met and provide the consequence for the direct appeal to the dab and so one of my questions is  where there's been a withholding or unreasonable delay and i'm wondering if you believe that that's still part of this case where your honor i said i believe you're referring to the option of escalation which is which is an appellant can skip the  there is a consequence doesn't mean that the deadlines not mandatory furthermore for purposes of the mandamus analysis we have to ask whether it's an adequate alternative remedy it is an alternative remedy but it was meant to be the exception not the rule and now the secretary wants it to be the rule in all cases and it's just not true that that an appellant can get the can get the same process by escalating because we would forgo the the  factual hearing before an ale j where we would put present witness testimony from the treating physicians and others so we contend that is not an adequate alternative remedy for that reason i believe might my time is finished  thank you your honor may please the court joshua salzman on half of the secretary plaintiff's mandamus claim fails for two independent sets of reasons first point if can't meet the three threshold criteria to demonstrate entitlement mandamus relief and second even were that not the case plaintiff fails to show that the district court abused its discretion and it is an abuse of discretion standard in determining that in light of the practical realities and constraints definitely take issue with the idea that there is a clear statutory command here but i'd like to go to the thrust of your question i'll circle back to that in terms of why the the practical realities matter here because this is a case under equity because for example in environmental defense center versus babbitt there this court found that the agency was in violation of statutory command because a statute clearly required an agency to take an action but congress had passed an appropriations rider that precluded the agency from taking that action the court specifically said the appropriations rider did not modify the underlying statute that the command remained but the court said of course in light of the realities of the situation that in light of the fact that the agency can't expend any money to fulfill this obligation it would be inappropriate for me to compel the action when the agency has no means of complying here or the agency has been tasked with a workload that cannot possibly manage there are in rough terms six hundred fifty thousand appeals that are currently pending and the agency after doubling the official see if it's  has the resources to adjudicate between eighty and ninety thousand appeals each year but that's not the only solution the solution is you just praise more claims and that's all it takes two to appeal all right just like tango  honor congress has imposed a lot of restrictions on the payment of medicare funds i particularly refer the court to forty nine u s c thirteen ninety five y which says notwithstanding any other provision of the medicare statute which would presumably include the provision that sets this ninety day timetable claims cannot be paid unless they meet certain criteria there are plenty of other provisions including thirteen ninety five f that establish additional criteria at  and require the secretary to verify the claims should be paid on top of that the secretary the congress ordered the secretary in order to ensure the integrity of the medicare program to establish an audit system that's in thirteen ninety  five the so the secretary under our basic separation of powers principles does not have authority to go pain claims that you not meet the criteria for payment under the medicare statute what if you're the government  case is to take one hundred years to pay these off i think nobody thinks that the status quo is acceptable your honor and i want to be clear about that the agency is committed to resolving this problem but it's a problem that they need help from congress with but getting back to my question they say one hundred years would that be the case for mandamus i honestly don't know what mandamus here would accomplish your honor unless it's putting casa colina to the front of the line and skipping over every want to head of them which is something both the c circuit and the fourth circuit said would be an equitable and appropriate what so did i get the problem here there are enough they'll j s correct yes your honor when l j has made decisions these cases are these the only kind of cases they decide are there other types of cases they adjudication capacity is in the is in the neighborhood of eighty thousand decisions this isn't a case where a discretionary decision to allocate resources differently would enable the agency to come close to meeting that the ninety day time table until the agency gets additional resources and authorities from congress and the agency has been working with congress to try to do that they've been also instituting various programs to try to address the backlog they're working hard as as they can within their existing constraints but those constraints are real and they're not something that the agency can can wish away this isn't due to a lack of will this is due to a lack of resources so the answer your honor's question about one hundred years conceivably if the agency was ignoring the problem if the agency said this isn't a problem if the agency was just sort of flouting any intention of trying to go down that road that would present a different case but here we have an agency that has gone to congress made congress aware of the situation asked for the additional resources submitted to g a o review to see what the agency could be doing better and has repeatedly asked for substantial increase in funding and has introduced all sorts of programs to try to ameliorate the problem and has when possible settled large batches of claims there are of that when the agency was able to find a discrete batch of claims that could be settled in a way that would be consistent with the agency's fiduciary and legal obligations to the medicare trust fund they did they would they went ahead with the settlement and were able to resolve over three hundred thousand appeals that way the path here actually hasn't been just worsening and worsening and worsening the agency because of these extraordinary efforts has beaten back the flow and has reversed the trend a little bit now i don't want to delude your honor it's going to get worse that's what we told the district court in  but the agency is struggling to the best of its ability against this all of this but if i can i'd like to return to the threshold statutory question because i don't think i've had a chance to address that yet and remember though the burden is on them to show a right that is clear and certainly here what they're asking for something akin to specific performance that the agency be required to give a hearing in ninety days but in the very same sub statutory  subsection d they rely on the one that's where the ninety day timetable is ninety three in d c three it says consequences of failure to meet deadlines and congress anticipated that the ninety day timetable would sometimes go unmet and it selected a remedy it said that providers would be given the option to be spared the exhaustion requirement at the third level of review and could proceed directly to the fourth level of review and the cusp of access to judicial or it is the opportunity to call doctors to call witnesses to give testimony this is not available at them so first of all i think it would if it missed understands how these appeals work to think not so certain claims are eligible for payment life testimony that that's not going to be a credibility determination where live testimony is likely to be particularly probative what these cases are about generally is documentation though the provider has an obligation to prepare contemporaneous medical records showing that these services were necessary and they have those documents are within the control of the provider and under the statute under subsection b three of the statute the providers required to build the entire record by the second level of for a view and to be extent for whatever reason they don't do that if there is good cause they're able to continue to build the record at the third and the fourth level overview to submit additional documents i think it would surprise this court to hear that in an a p a case for example that there is no meaningful review that can be done on a record when there has been an adequate opportunity by the plaintiffs to put in all of the materials needed to show that these services were rendered that they were reasonable and necessary and then to submit legal argument highlighting how the various submissions meet the criteria for payment i think i'm over my time unless the panel has any further like first i'd like to address the practical realities that mr salzman referred to this is not a case as in a vote of the environmental defense fund in which congress has appropriated no money congress gives a secretary one hundred million dollars per year to decide ala j appeals congress has also imposed a ninety day deadline we have to draw the conclusion from those two facts that congress expects the secretary to do the job for the hundred million dollars in order for the secretary to clear the backlog and the secretary repeatedly states that only money only throwing more money at this problem is going to solve it in order to clear the backlog in the next four years the secretary would have to decide an additional two hundred thousand cases per year that would require a tripling or quadrupling of this of the of the budget for administrative law judge hearings it's just not reasonable to expect that congress is going to quadruple the secretary's budget for for a whole j s the secretary has to do more with the funds that have been appropriated the secretary of the council also mentioned that that witness testimony is not needed in these cases but that flies in the face with the fact that congress provided a