has basically conceded that at least that is to our cause of action for the cleric to relieve the going to the secretary and for a writ of mandamus that this court does not have jurisdiction with respect to those particular causes of action so they should in fact be transferred back to the district court of the central just sort of california which leaves the remaining questions unless the court disagrees with that analysis as to whether this court should also send back the hospital's  contract claim against the secretary on the grounds that it is clearly a claim that arises under the medicare act both with respect to this court's prior cases including prime residential and under the tast and unseated many years ago the broad expanse of tests of what a rising on the medicare means with respect to a cause of action regardless of its label on yes they do unless they arise on the medicare i think this court has recognized that if the breach of contract is inextricably and  with the medicare act or a claim for benefits or otherwise whether the substantive basis of the claim and the standing of the claim is under is on the data going to grab the cost of the that would be seven want some of money to the government so you're right i mean the medicare actors kind of implicated in this case short but as far as deciding on the contract issue how does this implicate that's in contrast to the pardons case which right now that you want the money for you want them and the money under the claim pursuant to that to your provider we want the money for it it could be that the claim in the issue involves the application of some provision under the medicare yes or something out here we're not necessarily construing or flying any of the medicare the only thing we're looking at is the argument that there was a forcible contract here which the government on contract up on the question of i agree with your aunt on a contract that is outside of it was it's all arose in connection with medicare payments there's no dispute about that but the contract itself in order to construe the contract there's no reason to look at the medicare at all i disagree because first of all that the contract that the secretary is very authoritative to settle short stay appeals through the administrative process arises from the  into the deep end of the pool with respect to medicare issues because if the contract is a stamp life then we have to determine whether the claims that were submitted by these hospitals were eligible for today appeals that is existed or whether it was an enforceable had a specific sum of money attached to it write it like once you determine even if you determine the contract existed it was a valid contract is there more litigation enforcement there is because you have to determine whether that amount of money is correct based on the claims were submitted in other words the secretary's offer was if you have these are day plans because we're being deluged by party claims so the so we're offering this settlement to hospitals sixty eight cents on the dollar of your plant what you have to do is submit your lefts of all these short stay appeals that you've got going and we're going to look at those and the term of thirty four million dollars in medicare reimbursement and we believe that after you look at on that sixty eight cents on the dollar would be you know whatever it is they approximate twenty four million but that is not that is not the the right amount and then apply the sixty eight cent discount to those claims how that isn't a claim that arises on the medicare act given those stamps that would be required at this court found a valid contract strikes me as will be way out there in terms of this court's prior pronouncements about essentially any delving into the types of services provided the actual reimbursement that was submitted and that  that the beginning and end of our bridge contract but if there was a contract a valid contract then you're in medicare there's no way around that and so for that reason it should be sent back and i don't think it should be sent back  the judicial economy around the fifteen hundred because obviously the types of relief were or were a question of completely different under under the declaratory injunction but it is not as simple as sank this is just a breach of contract terms i mean they could have incorporated those terms into the contract right the criteria that you're say would apply under the medicare there that's not at issue that the court is going to have to resolve everybody agrees with the rules of the game  it's just the application to the claims here right well yes and no because because because for first of all there's no lump sum in the contract there's a methodology there's a methodology that is applied to invent a new rule that says if c m s settles those arising out on the medicare disappears right as long as the terms are in there but if you look within the terms assuming you're willing to do that if that that still doesn't deal with the inextricably intertwined with medicare statutory provisions and reimbursement mechanisms in other words the less developed a bill claims they have to look at those and agree with them the make sure that they are in fact shorts they appeals and they're not paying for appeals of some other issue that they don't like that they don't want to set up then they have to look at what we put and as our reimbursement and determine whether that is the correctly claimed reimbursement before in which case if that's true then it would be something that is outside the court of federal claims jurisdiction or to is it otherwise something that arises under the medicare act and this court case law has boiled down that question as to essentially whether or not this is the kind of claim that congress would have want to channel through the medicare administrative system and in this unique medicare case where what really appears to be in dispute here is a question of contract formation a question that i think both sides agree is not something is there if that question will contract are you know that there's a hypothetical possibility that that could be in dispute at this stage there's we don't have any reason to think that that is in dispute but you are right that that is a possibility so what is the government's  to under four or five g which are what you're going to district court under is you're going to district court to review a particular kind of determination and if you look at the relevant regulations and if you look at the statute the kind of determination you're the determination after this whole administrative process and the very start of that administrative process is that there has been an initial determination about medicare benefits and that's actually defined by regulation and this court case law has looked to has regulation defining what you don't have a case where somebody is saying that you breach the contract to pay medicare benefits or you reach some sort of contract we're ultimately what we're really fighting about is medicare benefits here you have the unusual case where what what seems to be at issue here  wasn't liable under medicare law and so you had about as clear a dispute about medicare allows you could possibly have but this quarter nonetheless held that it was not something that arose under the medicare act and therefore that there was talk or act or a stiction and that was because in light of the particular administrative scheme at issue there the court that thought that that wasn't the kind of claim that had to be channeled through the administrative process and that was because of the unique situation that the plaintiff was in the plaintiff in that case was an employer that had sponsored a particular kind of plan issue in these kinds of cases is a judgment about whether or not the kind of claim that the plaintiff is bringing is the kind of claim that congress would have want to channel and if you have misjudged that is there a difference if this contract if the dispute here over the contract or not whether or not there was a contract form but rather how to interpret a reply the contract let's assume hypothetically the it conceded that the government signed this contract and they're obligated to do whatever it is they're obligated to in the contract relevant regulation that medicare high's hears regulations of defining what is an initial determination and all of that that's important because an initial determination is what triggers that whole administrative review process and ultimately judicial review and the administrat determination is something that is by definition made by a contractor here that the thing that is being challenged here is the sekret is something that the secretary did not something that the contractor it was the secretary's refusal to make a payment and so that's why it 's difficult to fit what planets are doing here into that initial determination now if we mis understood this court case law and if it is in light of telecare and the other court and we'll send it we've misunderstood back to the district court and whether it's an issue of contracting for appreciation or not and at its most simplistic level this is clearly a kingston volley medicare reimbursement because the very amounts that are going to be paid to us whether at a discounted rate or not or on medicare reimbursement on five thousand nine hundred ninety four claims that we appealed that is what's being paid methodology wise and actual where the monies are so it's a medicare reimbursement case of under that very test i think it's going back or it should go back we would request it goes back on telly tele care if i'm pronouncing  didn't involve any claim for medicare benefits at all it was it was under the secondary payer statute which is that which is linked to medicare but is a sakte separate statute and in that case the employer was bringing in  so we don't think that that in that case isn't a rising on the case and and that it certainly does it doesn't control here at the end of the day they take the rule cannot be that in a case that involves medicare reimbursement there is going to be a carve out exception if the secretary simply raises their hand and says we dispute the existence of a contract but that can't be the rules but that it it's the secretary entering into the contract she gets to just come out of the medicare act and bring it here to determine the medicare stuff and whether the contract exists the secretary's position we then once you've applied those contract principles no question about it one way or another at the contract exists then you are and you have that you're into issues of the medicare act you're into the claims you're into the amounts agree that evaporates but that would be a rule that says that and that would be a rule that said even though it really doesn't about medicare reimbursement we're going to take a look at at medicare contracts by the secretary just to determine whether they exist and