escape issue in the trial quantity issue unless the court obviously has any questions about the other two issues and counter would help me if you would keep your voice participation of the deputy sheriff who was not part of the joint task force but was more was actually a person who heard about the arrest and came arguing that is your honor actually i argued in the alternative my first issue was that that since the court had found that there was no legal basis to maintain a charge because of the deputy sheriff being just federal it is that if it's legally insufficient then my my question was how can the court then what can a court actually do with it  it's not really like anything can it be a relevant factor my position is it cannot be and obviously it's a very unique kind of a kind of an issue and in searching for conduct when i thought about how the the guidelines at least at that time treated acquitted conduct i thought well get that there's possibly room there but now we have booker and our position is that at least under booker the court has to consider all these factors and i think this factor clearly tilts the situation it makes it i s a very different kind of reconsideration would you agree that if we were to order a listen am i remain and that all of these factors then would be bailable to the district court to consider in k and my other issue is as to the drug quantity and the government's argument was that we did not have player but i think we clearly have plain error the case went to trial the evidence was presented we had a chemist who testified with great specificity because the world a lot of container with various amounts of various grams of methamphetamine and methamphetamine in different in different states of preparation and all of that information came before the jury but the course the problem is that at that point we correctly follow the law the law has changed and then you have to send it back because the judge made the finding of the amount over and above the minimum amount to trigger that's correct average and that that honour's with respect there's three issues that mr noriega raises the first being sufficiency of the evidence with respect to the firearms that were located in the detached garage the jury was asked to find the all of the this is one of those or you foresee case before this court before many years ago and in that case it was under the old law where the gun was in the trunk and there was no connection that the area where the drugs were being used for a work visa or is not what we found here what we what was found here your honor is guns that were basically hidden except for in the law noriega himself that he had been in the house all day watching the cameras i've that reference was made by the government in their brief and what actually he said to the officers was that he was watching t v all day the pillow and counts in the garage step to these people were all found guilty of conspiracy to many thanks for possessing manufacture any one of them vicariously attributable to all your honor under pinkerton and the supreme court held that the in order for the no on offending persons involved in any substantive offense to be found guilty under the conspiracy theory they have to have knowledge or reasonable it must be reasonably foreseeable to that person that someone is going to possess a firearm during this during there enough for target practice for the purpose of perhaps repelling invaders if there was actual evidence so that my client mr noriega was up in the loft when the gun was out would not have had pseudoephedrine stains on his hands on his face and on his clothing so the government argued that he was actively involved in the studio ephedrine extraction process which is going on down well i don't think we can argue that the fact that that an officer testified that he said that noriega said in a post to rest statement that he was watching t v all day he didn't say i was upstairs in the loft he said i was watching t v all day which is obviously a self serving statement by a young man who was arrested thinks he stated that with sufficient evidence to prove that he actually saw the firearm that was in the loft that was out in the open at the time the officers rock that doesn't mean that it was out in the open if he ever was in that loft for him to see it's very possible again it's not in the record that no one was in the loft at the time the officers arrived however due to the fact that everybody started running before the officers actually got into the gate they were out at the gate and to enter into the driveway area when everybody started running it was before they actually entered so that it's reasonable i guess to assume that somebody was monitoring those televisions and said that the police were coming however nobody grabbed any of the guns that were hidden supposedly in places that would be easily the underlying crime would you agree that that incorporates a position that i would certainly agree to that your honor and there is no actual possession by mr noriega and i am arguing that there is no constructive possession by him in possession of a firearm or that he even knew that they exist tell us my quest and in order to have constructive possession you not only have to have knowledge but you have to have the ability to exercise control over that in other words he would have had to been able to get that gun and use it if he chose to do so and my argument to the jury focused exactly on that and the gun was sitting on the prosecutor's table and i basically showed them that it is not possible based on the evidence that was presented to assume that he had constructive possession one of the other people co defendants may have had constructive possession but not mr noriega anyone under the guidelines for a firearm being present but no one like guilty to a nine twenty guidelines but he was not no one pled guilty to my recollection of the nine twenty four stay with respect to the other issue on the book the remedial holding and i think m case with mr noriega is very clear that the judge was troubled by the fact that he was a young man who had never been in trouble before and he was looking at a two hundred thirty five month and on the conspiracy a long count one knowing that the sentence on the one twenty four c was a mandatory sixty sentence it had to be consecutive he had a very high density he was facing i filed a sentencing memorandum on mr noriega's behalf and argued that mandatory he did say they are since considerations here that are troubling one is your age and the fact that there you had no reported prior criminal history or record and he went on to say as a government has pointed out those in and of them taken together are not determining factors or as to whether or not i will or will not allow a mitigating role finding in this case that is at the reporters transcript for sentencing of pages seven and eight and went with the eligible for safety valve adjustment he couldn't that he was not in possession of the firearms for that purpose he may not have been eligible had he wanted to do that but i believe the go to court stating that he was troubled by those factors which were two of the factors i raised  the question of mitigating role i think the court properly analyzed that request and saying that those two in and of themselves at that time when the guidelines were mandatory those weren't factors that could be considered this conviction in the case of thirty one we look at the standard view of course that it could any rational jury find it and then we've got these individuals that were linked to the garage into the loft and obviously there were those weapons here there and everywhere there's weapons right in plain view on a couch tucked in apparently between the support of the couch and the seating area but at what point in time the question becomes whether there at the same time if any are all of the defendants i think there's a real serious issue of proof well certainly the weapons were there when the defendants right now the police arrive at the gate somebody is apparently watching the surveillance cameras because there's no other windows the men run out the back door the garage back or side door stroke and then nobody else comes in and the people that ran out with their the police searched the weapons were there so when those men were in the garage they were there with the weapons there's no there's no way we can construe these facts that somebody else can and put the weapons there after those men noriega because he says he's been watching t v it has been up and that laugh with the firearm how to plain view on the couch watching the monitors and warning the other people what's the evidence that the fire on without him playing be on the couch at the i think that's a very very rational way to interpret the facts and of course the facts are trapped in the best life possible for the government so these four men in the garage somebody is up in the loft the guys out in plain view they all need one of them is an actual possession of the aca and the government's theory of course would be all of them are in constructive possession of the have a wiretap and amy are saying let's have john doe killed let's have somebody machine gun him and the police in their heart can't get a hold a challenge all right away and somebody machine guns john guy and a and b have we get to you for mr noriega there's actual knowledge i think it's very much these factual support actual knowledge that he was there now mike that's cases on this art is the hanssen case where coconspirators had the gun we've got a slam dunk that somebody in this conspiracy had actually had possession of that weapon that was out at the very least the weapon that's out on the couch that's a slam dunk we just don't know if it's a b problem but we know we know that it's either a or b or c or d or all of them and we also know that there are life in concert you find  people in the garage clearly one of them had actual possession of that one weapon and it's reasonably foreseeable that the best case for the defense was your opinion judge nelson in the cast and did answered some phone calls passed on information i think of one point somebody was the caller was talking to ms kashmir the defendant and her husband had to relay some information she was indicted and convicted  involvement in the conspiracy was very minimal this situation is very different these people are very actively involved here one of my trusted very very involved  bringing it back and forth it's my point and want to say is this is not a case where it's not reasonably foreseeable to these people people it was reasonably foreseeable to them because you're deeply involved in the methamphetamine transaction there's a lot of evidence about a witness testified that guns firearms are commonly found in meth labs there was testimony about the value of the of the illegal property there the studio ephedrine was going to be able to produce a price with seventy two thousand dollars worth of methamphetamine the methamphetamine itself that was there was probably seven thousand dollars worth it's not a surprised it is that firearms are there why not us versus spare right and that was what i was just talking about that believe that was your opinion maybe i missed missed read it and that's where the wife was very very tangentially involved and there was no evidence at all that this wife in the garage but they didn't know there's two weapons in plain sight in the lock fears for weapons getting under a stairway and there's another weapon under a s at least make as it was his house that is how the government presented it to the jury and there was never any any evidence that any specific individual actually possessed or even constructively possessed it and they and again i understand that's not i understand one reasonable just yet but we're using a constructive possession in order to get a pinkerton which is even farther removed from constructive possession saying that somebody possessed it therefore everybody that's involved with that somebody well everybody asks the key to the premises which both of these gentlemen ruiz and of the unfortunately that that evidence came in because mr always and mr noriega went to trial but i believe everybody case requires a score to view the special context of a seventh grade class where heightened scrutiny is required and that the must view what occurred in this class dealing with the teaching of islam through the eyes of objective observer who is in the place of a seventh grade student who's not as informed as your standard objectors or is more subject to peer pressure as more impressionable this court to be particularly vigilant in these cases because we're dealing here with children are also feeling here with violation of the south stream clause in the classroom setting dealing with vulnerable students the key here is neutrality and i can't help but wonder if this case dealt with the teaching of catholicism for example and what occurred in the class with islam had occurred with teaching of catholicism that is thousand clause violation would not have been of the current policy or the policy i was in a place that time where an instructional goal of the school was to develop the spiritual moral and ethical values and students here in this is long unit for the seventh grade students which occurred right after nine eleven had taken place students were passed out information packets they grade was based upon participation in this unit the packet that was handed out to them which the students kept said that during the simulation you and your classmates will become muslim they took islamic names from a listing of names they made name tags identification tags with their new islamic experience then a religious experience in the case of the disclaimers chases testimony from his class was that the teacher didn't disclaim a lot of things or not explain a lot of things there's also testimony from another student who goes by the initials of e c who is in a totally separate class from chase shoes she does not know what took place in the class here though if if that were the standard then a school could teach religion not teach about religion how the children in gaijin religious activities always with the disclaimer of all this is only what muslims do however let's do this or this is only what for example catholics do but let's observe the lenten fast or let's let's engage in the mass here however we're not going to do everything you know for example we're only going to say the first half of the our father or the first half of the hail mary here in the context of this class again from the as a result of server you not only have the teachers handing out these materials and some of these materials to have in for example remember allah always and you shall prosper now although this is being handed to students and whether the teacher explained or not this is the what the students are looking at and a class where there are to become muslims in the class also where they're making banners as part of the participation and on the banners many of them wrote in the name of god the most merciful the most gracious praise be to god and had those banners displayed on the wall again if you put this in the situation of teaching judaism teaching christianity and you are in the classroom with these statements on the wall of course people are saying you aren't dorsenne religion here hardly council chiefs earlier in the school year consecrating wine and bread he was not hearing confessions he was not saying part of the hail mary he was not memorizing verses out of the bible he was not doing anything it be the same as if he were taking the role of a bus driver and made a cardboard bus he was not engaging in all these activities here they had students and gauging in religious practices in the in the context of this class they i mean all these activities are crossing the line it's one thing to teach about religion no one no one has a quarrel with that but here you are having these children now engaging in activities which it clearly gone dealing with witchcraft the court this court says that those were just fantasy activities they did not have any direct relationship to actual which witchcraft practices they were they were just merely clin in that regard so you have you have a wholly separate situation from just fantasy activities based on a secular material compared to activities here that are based upon a book that aren't is  and it's going to york question earlier a judge nelson if the teachers have to qualify and clarify this book so many times as the sentence that occurred then that underscores the fact that it's not wholly a secular book it's a sectarian book and it just emphasizes the religious nature of the book again you have a statement in the book in big letters remember allah always and you make prosper at the same time children s are reading the actual field which is prayer where recent memories and parts that reciting it to the teacher were reading actual from the qur'an memorizing parts of it and reciting it were were given quiz cars that had affirmations of islamic truth for example and i'm just paraphrasing here that the angel gabriel came to mohammad said he was the apostle of god and would go warn his people truth these were these were these are affirmations positive  about teaching children about religion the teaching of our religion in this case with islam have of the state adopted and approved book across the centuries explains thoroughly islamic puts everything in the qualifying if what occurred in the islam unit here should then be permitted and if this court is going to affirm what happened below then it should make it clear that any religion a matter what it is can be taught identically to what happened in bahrain the school district do this the only case that we're getting these don't come up that often the only cases we're dealing with the simulation or the dealing with the witchcraft that said it was permissible but then said it was a fantasy fantasy activity  know no that was an opinion of a court found by ny sort of president just within the past month or so i think that's not what i was just saying your honor is that my side here was just in response to the judge's question that at least one  religion not from this court the only again the only decisions that dealing with any type of activity that i can recall would be again the brown decision which you pointed to but that again was dealing with secular activity now and faithful representation of islam it's not ok you know if it's a true and accurate representation of a actual religion where if some students as in this case are engaging these activities putting up barriers praising allah i think that in that case now you have moved beyond the teaching of into the teaching about into the teaching of and you call that worshipping i would think in the context of this class it would be again you have to look at the this in the context of the seventh grade students batters on the wall praising allah ok praising god going up to the teacher making the same same statement praise be to god most m l most conferees be to god wearing the name tags with the religious symbols throughout the materials having affirmations in the materials to remember allah always and you shall prosper all in this force when in no other course did bend it depends on the context i think if they would make that statement in the context of here acting as though they're muslim in a classroom where they're getting points for participation and where they're engaging in illegal activities it doing here but she's doing it continually she's doing continually she's doing it with children who again from from their perspective for points are to become muslim that's what the handouts said they are  doing it with with catechetical for no lack of a better term materials that have everything laid out as truth which even if the teacher clarified it they still have the materials the sense i got from the fantasy in brownville i don't i don't understand how you make a distinction around where they were roleplaying as opposed to in this case what their role playing because in brown the fantasy activities are based upon a secular source here practi but not the actual practice here these practices are not fantasy practices they are there explicit out of patients for the purpose of a classroom now they're not one hundred percent accurate just because you can't do that you can't you know fasting for  n is a month long experience or praying five times a day if cetera i mean this is designed to appoint the students with these practices and i think this is not saying you can't teach it because the book itself allows of the across the centuries book which also warns against what happened in the classroom is the state approved but says you shouldn't be engaging in these activities you can still be taught still kids can still learn just as they learned other religions in the class christianity buddhism for example without  instructional strategies in teaching their students about diverse cultures and religions in asking this court to reverse judge hamilton's well reasoned careful opinion plaintiffs are really asking you to depart from stimulation to which plaintiff's object consisted of a game an educational fun classroom game with camels moving along a classroom board wall students made our projects they colored pictures of camels in palm trees walls around the class that had attributions are from the koran it is clear at that time from the context of the classroom and the context of the activities there was nothing sacred or worshipful about any of the activities that the children participated in for instance the banner activity that he's referring to this was a banner on but your paper city the children were divided into groups they made a banner for each city's i thin this overall learning activity the banner was a way of helping them an art project to help them learn that in the religion of islam one of the activities that muslims believe they are supposed to do is to profess their thing now if you look at what the activity was there was nothing sacred or worshipful about an art project that would have made the students think that this carling was somehow encouraging them the students to protest their own face this is exactly that the problem the analytical problem with pages argument they would have this court focused microscopically on a few activities and if you written materials taken completely out of context in which those activities were presented and out of context of the fact that the discreet activities that they emphasized were part of the secular presentation in a unit on islamic history and culture which was itself part o unit out of a year long world history class that studied many cultures and religions including but as them including christianity in the middle ages how long do the program take the unit was about eight weeks long  role playing activities in the islam unit there was some kind of discrimination going on because it wasn't being used as much in the other units first that's not i don't believe that the record is consistent with that factual assertion because there clearly was this role play it were the case that no other unit related to religion included roleplaying activities the course conclusion would have to be the same for the following reasons the students it is clear from the record and  or familiar with the use of games and role playing as common classroom instructional strategies so they want to perceive nothing unusual no special endorsement or message of approval from their use in this unit as opposed to other unit moreover as i'd like to discuss a little bit more the nature of the activities is not worship full are sacred it was always that the activities themselves were not conducted in any kind of solemn manner the purpose of the activities the presentation was always for to learn about islam and and the activities to which played just subjects comprise a very small portion of an overall unit on islamic history and culture which was in turn one unit in an overall year long history class containing a secular presentation on many different world cultures as well what's your response to opposing counsel's representation that chase felt that the class was practicing an individual test students testimony is not necessarily relevant if you look at even though we agree with it we might agree with you on that do you agree with the representation that she was that the deal that he was practicing their religion felt we were doing it after the nine eleven thing so the objection that he articulated was actually a political objection to the study of the study including islam and  against the infidels well to the extent that it was a religious objection it would be inappropriate for the school to exercise teaching at that what is about islamic history and culture based on a religious objection that starts to look very much like what one state did in efforts and banning the teaching of evolution in response to a religious objection and the supreme court has made clear that in fact it would be an establishment that he was feeling weird and he was practicing religion chase did testify to that in addition we also write here and he did say practicing and i have your marks the page and then after the nine eleven thing it's like kind of felt weird it's like weird and then if you think it was and i just remember and then right after that what felt weird just practicing the islam stuff and because i'm not so sure so what let's look at what actually happened and very critically what did not happen the memorization activity consisted still only of the following on one occasion chase memorized one proverb with no religious significance was not asked to do this in a reverential manner he was not standing on a prayer rug he had not engaged in ritual washing he had not removed his shoes he was not in a mosque there is and we earlier  clause violation for students in a public school context merely to utter words with religious significance if that were so then school choir's would never be able to sing a song that had any religious significance  bachmann the tenth circuit rejected and establishment clause challenge to a school choir singing religious songs in religious venues that's an you know as an added level of worship fullness to the context not present in this case in the fists circuit's decision indo that court rejected an establishment clause challenge to the school choir adopting the theme song may the lord bless you and keep you students in both of these cases were uttering words with religious significance but if you look at the context in which it occurred there's no there the activity itself is not worshipful because there was a secular purpose to sayings just to practice their musical qualities  for their artistic musical values in this case there's nothing worshipful or sacred about the context in which any of the activities including the memorization activity occurred  completely unlike the students in angle in which the supreme court struck down the practice of daily prayer the students in this case never participated in any activity in which they were asked to sol carlin never urged students to act in prescribed ways as a personal response to authority all of the classroom activities that the students participated in were not were entirely secular in nature they were not conducted in any kind of solemn worshipful or sacred noun or and they were always presented for the very expressed secular purpose of learning about the religion of islam chasing sell food such classroom ga and the reason mr white brings up the example of lens for a mass the reason why this case is different because none of the activities even remotely approached a recreation of an actual religious practice the activities were not conducted in a worshipful manner brown is exactly on point and the reasoning is entirely applicable to this case the plaintiffs the brown taking the position that merely because there was some connection between the classroom activities and actual wiccan pagan rituals that that alone established a violation of the establishment clause this court rejected that argument relying on the court explained in that case that even though the blue laws have their origin in judeo christian prohibitions there the connection between a governmental activity and a religious prohibition is intentional it's not coincidental even though the maryland blue laws have their connection their origin in the judeo christian prohibitions there's now a secular purpose for them and that's to ensure that workers don't have to work seven days a week it's like a mass mauer's work regulations in the health and welfare of the public in this case exactly the same applies just because there's a kind action to the religion of islam that itself does not give rise to an establishment clause violation because there is a secular purpose which is to teach students about the religion and again as in brown the activities comprised a small portion of an overall secular presentation there was a secular purposed to help students learn about islam and so brown it is provides the the simple answer to this case plaintiffs would have this court however do a microscopic analysis looking at things out of context under their approach it doesn't matter how much the teacher clarifies written materials how she presents the activities how secular the overall presentation is there are some written materials and some instructional strategies that in their view so offensive to their position that they should be per se prescribed not only is that position at odds with the establishment clause case law it's fundamentally unsound that educational policy as a matter of the salvation clause case law the establishment clause is simply not susceptible of per se rules you have to look at the context if we always ignore the context then no school would ever be able to include the bible in any two secular presentation on world history that's clearly at odds with what with what the supreme court has instructed if we ignore the secular context no town hall would ever be able to include a crash in its holiday display no matter how secular the display we know that is at odds with what the supreme court has said and lynch absolutely not she flunked out because she did not complete the class and again the coersion the establishment clause prohibits the coersion participation in religious exercises there was nothing remotely religious about the exercises that miss carr conducted in her class she used had an arabic alphabet they study a glossary they had a map they had a trivia game i mean  with respect if i can touch briefly on the free exercise in the due process parental rights claims for the free exercise this case is squarely controlled by grove there the school provided in opt out upon objection exactly the same was the case here if the ackland had come to us of course we would have granted them an opt out we granted an opt out to two other students that year that's all that grove requires the plaintiffs would have this law on the free exercise claim and the due process claim as this court explained in hawke's parents simply do not have a right to quote pick and choose those aspects of a public school education they want not only do they wish to opt their own children out of the is one unit they wish to control the public education that is provided to the the children of other parents that goes far beyond their personal free exercise rights and their personal parental rights no reasonable observer in this case would have understood the school districts to have been indorsing is in any way on top of all the various factors which make clear there was no establishment plaintiffs seem to somehow islam answer not at first then i started to realize that we were starting that we started studying it and actually doing it so it kind of like made me feel weird about all of it and stuff and these are the words of a very very young boy supposed to become muslim were acting as a muslim would act and also within a school policy where the instructional goal was to develop the children's spiritual moral and ethical values our view that we're trying to impose i  is trying to put more onto what we're trying to do than really is true is to not cause any more establishment clause violations as far as the activities in the classroom our position is in compliance with across the centuries which is the textbook adopted by the state of california which says don't gaijin role playing in simulation of religious practices also with regard to the opt out and opt out is useless unless a parent knows about the opt out the parents only hear found out about the opt out after their child chased experience what he did and then to show the the application they opt out then you see what happens to samantha who has opted out because she did not in light of the policy of the school and is in effect she's punished by being ostracized and put off into a room by herself to study when i would be easier for her to sat through what her brother did so an opt out here without any notice fairness is that if you have an opt out which no one knows about what good is it especially in a short class for example if the school said ok kids let's all go off to the local baptist church and everyone's going to be was it was over eight the actual becoming a muslim aspect of it was only over three weeks and chase's mom found out about it after the fact and that's when she objected to it and the school here was aware that people were opposed to it that inform anyone plus the islam simulation book itself is it's just like with school board i'm sorry and like the school board of the school but i believe here is elected  an important hospital resource for this particular geographic area my home with the what is now c m s the center for medicare and medicaid services and of course there is a whole set of regulations and procedures for our institution to become qualified as a sole community provider but none of those qualification aspects of procedures are at issue here what  y issue here is the payment rate now it's not irrelevant the judge be that you bring this up because it does tie into the public policy behind the sole community provider exemption from the normal rules of payment in other words there's a certain level of economic protection given to the sole community provider with can get these services as medicare beneficiaries that's the justification for the exemption that's in the social security act which does direct the secretary to make special procedures in exemption and exceptions to the payment system and of course that's why we're here and what happened in this case in in short is that the provider reimbursement review board decided that if there was what it considered to be an error in setting the rate that the reopening provision of the regulations which is section four hundred five point one eight eight five can be used to reduce the payment to the hospital for each year to which the priest that rate applies to three years up to three years from the notice of program reimbursement for that particular year right and that is i think the point of disagreement between the parties in this case because i mean there's an awful lot of detail in a lot of regulations here but i difference but it's really not that subtle once you get into it there is a decision made about the applicable rate in one nine hundred ninety four and correct correct and that weight is then changed in one nine hundred ninety eight by the intermediary for reasons that the record shows are complicated  was but actually the purse payment wasn't itself taken out what was taken out was the terminations payment back when they came out of person's lifetime because because actually what happened is that for a period of time in the base year they participated in the retirement system and they spent something like fifty seven thousand dollars the records a little unclear as of whether it was fifty three thousand or fifty seven thousand but they spent some money on then they decided for reasons of economy or whatever the to terminate their participation in purse and then they had to pay three hundred seventy six thousand dollars as terminations liability right and when the case was in front of the long run what all the participants you know we go further with this three hundred seventy six thousand dollars with that never appeal d the short answer is it was not appealed in the underlying case so far as we can tell except that there was an there is no evidence that it was there but what we explain in the grief is that that really doesn't matter for two reasons one of them legal and one of them factual the legal reason is that for any year to which it's applied you have a separate appeal right as a provider you do and if you were to prevail in that appeal for that year and here we're talking nine hundred ninety four nine hundred ninety five then you get the benefit of the merits of that appeal but it's not retroactive let me ask you this year i was following you until you got to that point i thought when the interests are calculated at one time calculation and you have a certain period of time to a field that calculation otherwise you says that you know in four twelve seven one and seven two and then the question of whether the general appeal to authority of the p r includes review of those issues in the when you when you raised that point i said there was another reason why why that is really not it if you hear and the issue is of course that the reason is of course that in  four the rate that we're talking about was in fact published by the intermediary in applied to the hospital so in other words the hospital got the benefit of that revised rate for some period of time and it turns out to have been about four years before the intermediary said oh you know what i'm going to do now is i'm going to retroactively change it and i'm going to and that's your question in the answer that as far as we know we don't have evidence that that was part of the formal appeals for those early years feel there's no doubt of that i think there's no doubt of that because there was no challenge to jurisdiction over this appeal before the board what if the board's position was that you can't bring it up now because you didn't reimbursement review board that the hospital i can to the hospital argued a factual position based on the dissent by one of the one of the two defending judges before th  at the board but that just the dispute between the judges at the board is primarily a factual one concerning whether the person terminations liability expenses the onetime nonrecurring at that time which is what the majority of the board found for purposes of rate that ing using the base year one hundred eighty three base your cock or whether that and at the hospital in the prior argument essentially acknowledged that there was no appeal of that exclusion from one hundred eighty four what the board then found was that in one nine and ninety four during a settlement process involving unrelated issues in which the base your costs were adjusted they used the wrong nine hundred eighty three base your cost then use the as a part of setting the base your costs for purposes of that's correct the board found that that was unfair when that wrong cost structure was used in one thousand nine hundred three ninety four at that of the factual finding reverse of what the hospital accusing the government of having done in this case which the government didn't do based on the factual findings of the board the board found that there had to be finality under sections for one and the four twelve seven two laid out various procedures for modifying those base you're caught but what we do have in the in the record we have the board finding that there was no appeal acknowledged by it may have some elements of both but it's primarily factual because you have testimony from the witnesses of the intermediary and and of the hospital that the rate has been that it's certainly been the intermediaries at the rate use for that amount of the base of that nine hundred eighty three year and one is the cia to use for that in the rate base your cost for purposes of rate that is and they literally testimony literally is training there that that there was an error in one nine hundred ninety three ninety four ok there is the intermediary witness hamilton yea i believe inside that she testified that the what part of the record ok i'm referring to the supplemental excerpts of record submitted by the government at nineteen for twenty ten to eighteen twenty one line eight to eleven and twenty two lines one to six where he testifies that the inclusion of the purse liability expense was in one thousand nine hundred ninety three ninety four was unintentional and resulted from mistake of the wrong cost report thank you also for the court to supplemental excerpts of record page thirty one which is a letter from the hospital in which they acknowledge that the nine hundred eighty three cost report needed to be rerun to exclude the three hundred seventy six thousand hurst nonrecurring expense this was a nineteen ninety seven letter i believe th r b but what what's clear is that they have backed away from the statements by think it was mr still vera in that letter and they claim that he didn't have authority to make those statements  going back to one issue with regard to the ability to appeal and further i want to just touch on something to further support the board's legal finding that under four twelve point seven one four twelve point seven two the time for appeal or the time for modification of the base your costs with respect to the person liability was finalized by nine hundred eighty seven  talent site two for twelve point seven to be one as providing a potential i don't really see a where they don't clear it wasn't clearly made but potentially  our means a mechanism for appealing in any subsequent year in which those base you're caught are used to calculate the hospital specific rate and the repayment for that subsequent year what that eighty five and ultimately modifications could have been made but they can't years down the road appeal it just because that rate continues to be used in every payment you know to the extent that the issue of whether i don't agree that it's properly and issue but to the extent that they're arguing that the purse liability exclusion are perfectly ability amount should not have been excluded in basic cost in one nine hundred ninety nine hundred eighty three that i mean the board also found a matter of fact that it was properly excluded and there's substantial evidence in the record for that finding as well there's one other point i would like to address which is with respect to the reopening under four of five point one eight five appellate makes the argument in their brief that that reopening it miserably can go back three years but that the error and i believe this was touched on in the opening argument the air in this case occurred in ninety three ninety four and that reopened by the one nine hundred ninety eight notice those notices were issued within three years of the ninety eight notice they were issued on april twenty one ninety six for the ninety four fiscal year and august twenty eighth ninety seven for the ninety five  challenge the three year provision under four hundred five point one eight five with respect to earlier years but they never challenged it with respect to the ninety four ninety five years and the district court hospital on that issue was also wrong because for zero five point one eight five permits reopening within three years of a determination of an intermediary or a notice of the intermediary determination and that's what those notices from ninety six to ninety seven were with respect to the fifth they were the notice of program reimbursement for the ninety four ninety five years and they're properly reopened board decision he makes an authoritative determination of the issue from the agency standpoint and that was that's the sort of decision that that alhambra case was but i want to address specifically a couple of things contention because the intermediary admitted there at the time of the hearing that eight hundred eighty five couldn't justify the one nine hundred ninety eight reopening and in fact in the board hundred eighty five in other words the intermediary had a different theory of why it could reopen under eight hundred eighty five one which the which which the board did not  accept now counsel made reference which i think is very instructive to the dissenting opinion of the chairman chairman cochran because i don't think it's correct  cochran's disagreement was with a factual issue because it was both factual and legal and she explained that she didn't see the evidence to her that this  error by any means but that if you accepted that the majority is making a finding of fact on this that they are still wrong as a matter of law because eight hundred eighty five can't be used to go back four years to change that nine hundred ninety four determination and i would particularly suggest that the theme of the excerpts of record that's where ms cochran explains all these kinds of appeals that the agency gets governance and interpretation of the regulations but here we don't have anything to support any interpretation other than the decision of the board in this case because as we've pointed out and i didn't really see anything in the briefs to the contrary there is no authority to the contrary which would support the board's decision outside of th and we did cite the desert hospital of the las vegas case which appears to go exactly the other way in saying that you can't avoid the time limitations of point seven one  citation this is on page sixteen where she says the regulation of four twelve seven two three explicitly addresses limited circumstances when reopening may be used only to increase the