you say with the dischord it was inconsistent with this court's first mandate and if that doesn't work you say that the review by the secretary had to consider only the data that was the precursor to the the new budget adjustment factor and that they're not permitted to consider the the what i call the answers to the test were it after the fact is that declaratory judgment if it were plainly you know we often at least as long as i've been on this court we always consider the opinion as part of the order and  for the secretary to do what the secretary subsequently did write but there's nothing that prohibits it either right well there is a statutory scheme that is created in terms of review of the state plan amendment  rob we don't want states to just willy nilly put in numbers i think we can all agree on that but when you end up in the unusual  posture of this case where you have the benefit of a get what i call the answers to the test right shouldn't the secretary mustn't the secretary consider the answers to the test and here's why i assume they had the answers to the test show on the poorest grave reduction in quality of care with people dying and suffering terribly in the nursing homes you would certainly be telling us that the secretary specifically at that address their arguments address the fact that the facilities continued to provide care consistent with the department of health regulations relating to quality but it did not address the issue of whether that would continue on an ongoing basis to provide adequate access to the residents these are some facilities i'd like to address the fact also but with respect to the procedural aspects of this is a procedure that the statutory time one that's in thirteen sixteen apply in a case with this kind of simply unworkable because you are by definition looking at what has happened in the past and you have this unusual posture of different time limits for  to consider the information that they consider because there is a statutory scheme in place that basically sets forth how to address these issues so that goes back to the issue of what we just talked about with that one hundred sixty days after the water after the plane is had pursued a summer motion for summary judgment in the state administrative court that is seeking the ten million dollars that is at issue here to pay for services rendered opportunity to meet the data that had been put together by the secretary but he would have done that through a notice of conduct process but you didn't do it in the trial court included in the trial court judgment in other words in the trial the challenge the legitimacy of the post hoc data but we just reached the threshold question of whether it was possible for the secretary to engage in procedure but we'll be thirteen ninety six and it is all the we do we do with this case a different leader in the first panel because so much has changed since the first panel consider this case namely the first panel didn't have the secretary's letter requesting were information and the secretary got that information and the district court considered all that so should we just apply thirteen ninety six and  say the secretary has the power to seek more information and considering the information it received she did not act arbitrarily and capriciously that's right so i share your isn't the administrative outcomes act it seems it is treated procedure x a procedure matters here and certainly we don't want to be sending a message to the secretary that it's ok to not do her homework in making sure that the states do their homework when they make these grave decisions regarding reimbursements to poor people in  around didn't contain adequate justification and it did a better job ahead and given the posture of this case it turns out that there was some data available that they would not have been able to consider the first time around but as you aptly pointed out that did very well could have cut the other direction there's nothing to say that the secretary was before the decision issued under statute that is at least quite similar in wording to the one that we have here that's my first question the second question is why did you take so long what was the five month or so delay that your opposing counsel pointed out sure to take those in order on the first question there are a couple cases that come to mind one is that the circuits decision in the medical waste institute case in which there had been an initial decision we're going to take a new dataset and in the meantime we had actual emissions data for medical and separators that didn't exist before and it resulted in higher standards and there had been the first time around and in this second stage of the judicial review the medical waste incinerator industry argued that it was in permissible to consider data that hadn't existed during the first round of judicial review in the d c circuit it was was passed by that assertion because they said we meant a case of the agency we actually want the applied and i just wanted to be sure that everybody understands that there hadn't been any challenge to the quality of the data that was used on the remaining here at the district court found that this was you know gray davis and the only question is was is there something in the medicaid statute that required the secretary to blind yourself to that not in this case we believe thirteen sixteen was the procedure for the parties to take and they didn't take it there was no there was no agreement between the parties there's no statutory authority for the secretary to do what they did