and referred to damages in the same section in clause want it said that if damages are actually applicable they should be paid out of the medicare trust fund in light of that reference to damages congress didn't want to prejudge the bre contract case they didn't want people thinking that just because damages are referenced in the statute you get some kind of damages so they said nothing in close one shall be construed to provide an independent times talks about the precluding language this sense does not preclude anything it says that nothing in close one should be construed to provide an independent cause of action damages were provided for what do you think congress you is your only argument that i don't know what it means and therefore i know i'm telling you i believe are reasonable and i think the best construction that's what i've asked is that they didn't congress if they prove they provided for damages could be applicable it doesn't preclude judicial review it says that close one doesn't provide a right of jupiter or the un i think the independent work could be brought into that second clause as well doesn't provide an independent right of judicial review creates a sufficient to begin with the that precludes an interpretation to exclude your absolute this if the government doesn't cite a single case where jurisdiction was actually precluded ok under the slab reformulations got to be explicit under prior formulations it has to be unambiguous you know the california case which we cite contains language that's much more clear and much more ambiguous than this well language barrier was that  construction that congress did not want people to think that by providing for damages they were prejudging they were providing a new claim by the statute they didn't provide a new claim by the statute and that's what the sentence says it shouldn't be construed to provide an independent cause of action and a donor with again with all due respect i think that's a sensible construction i think it's a plausible construction i think it's a reasonable construction and it makes that sentence ambiguous when we talk about go over that one more  congress explicitly provided for damages and clause one to be paid out of the medicare trust fund right there ok but they didn't want people to think that they were prejudging that you would actually be intitled by th we may address that from another angle though i don't like it and i'll take it certainly the idea that this one word let's talk about the claims process the one word damages the reference to damages authorize m s to set up this this voluntary discretionary claims process i mean think about that that's extraordinary i have never heard of a of a federal agency being authorized in their discretion to to dole out money if they want to do it now i think what happened if i may i think what happened here the proposed rule making on that claims process was issued more than a year after the statute was in july and the record july but two thousand an independent course of action it means what i'm trying to explain i guess with less success than i and when i reverse that this plus one by mentioning damages does not provide an damages to the extent they're applicable should be paid out and that's an independent claim that we bring us account to work and point that's where we'd be without that sense and that's what congress wanted to deter wanted to avoid congress knows how to preclude judicial review the medicare act there's no question about that we cite in footnote one of our reply there's dozens of provisions there shall be no judicial or administrative review thank you very much m are to be paid out of the medicare trust fund as the government reads that the term being terminated language had three directives that said the round one cap contracts are to be terminated no payments are to be made on those contracts and three any damages that may be a political are to be paid out of the medicare trust fund you know all three of those directions clearly speak to see a menace and what it is supposed to do in terms of its administration of the competitive based upon the terminations and as directed by the media it is impossible to divorce their notion of a common law breach of contract claim from the fact that common law breach of contract claim  review but my answer is it does say that the terminations of the contracts shall not be construed to provide an independent cause of action when it says nothing in subclause one in which the terminations provision is contained is identified determination awards of contracts selection of i demand for comp for competitive acquisition physician payment amounts all of the deal with the manner in which the secretary exercises his discretion or her discretion in terms of administering this system so my question to you to begin with i have several my first question to you is do you know of any other statutory provisions in this medicare area that used the phrase providing an independent cause of action i found no other they all talk about no traditional view etc ministre to action but i find i haven't found any that used the phrase providing an independent cause of action in my missing something that you know about you're not judge slater but i think the response to your question is not that's my question but my question is do you know of any other statute that used that phrase here or anywhere in medicare i do not or second question before i get to my real point the second question is do you know any of their provisions in the medicare act or in any other act where congress has abrogated existing contracts as distinct from he having the secretary unreviewable thora to make decisions other than winstar you know of any that brings me back then thank you for that just that if that's helpful that brings me back then to the answer i'm going to answer the question i asked mr is that what to dispatch or possibly have meant if it doesn't mean what you want to me it strikes me like your reaction to this possible meaning perhaps what tundras had in mind was to say the decision to terminate these contracts shall not be subject to judicial review that is to say we don't want you courts to come along and question whether these contracts are terminated or not because we want to terminate them because we want them to be rebid under a new set of rules we i don't want courts interfering with the ministration of the program reading is that it's unclear to me what inaction simply challenging the terminations of the contracts would be short of a claim for damages i mean the court of federal claims can't you could always say that congress had no that i certainly do see what you're struggling with your and my position is only that i don't think that sort of covers the entire scope of that precluding language there especially to the extent it also speaks to me th independent cause of action or a right to administrative or judicial review you do agree that that someone well it in retrospect given that we're here it it could probably have been potentially written the phased in implementation of the program itself c m s is selection of items and services to be provided as part of the program its determination of payment amounts for the program and its and the award of contracts the precluding language of section one fifty four is simply a logical extension of that it again deals with the administration of these contracts and that's made more clear by the fact that to me which terminated the contracts also clearly stated that the contracts were to be  immediately recomputed the medicare modernization act which created the competitive acquisition program directed that the competitive acquisition program was in an effort to effect savings in the medicare program it would not make sense for congress to terminate these contracts so that they could be recomputed but then at the same time open up the medicare trust fund for the first time to  trial courts to make awards of damages out of it that would seem to run afoul of the say idea that the program was to be insulated from traditional review and and in an effort to effectuate savings in the program itself well i'm not sure respectfully judge i'm not sure i agree a think that would still leave open the question of what the independent cause of action and i just referred sections right to seek damages from the medicare trust review and i think when you read them all in their entirety to say that there is still a cause of action for a common law breach arising from the terminations notwithstanding the fact that subclause one directed see that my time is expired unless the court has any further questions all right thank you very much thank you thank you very briefly and started to check i didn't hear them in the case you mention but i think another example is a lynch against the united states where the supreme court dealt with a statute that was alleged to both take away a right and a remedy and strange very hard to say that congress would not have taken away the remedy you took away the right so that when you disagree moment we can address that if necessary i hope it is at a subsequent stage of the case in the report coming they got zero to leave them with no contracts and no remedies would just be flat