with the understanding that those payments are subject to a subsequent post payment review and possible recoupment the district court here entered an injunction that bars h h s from recouping funds that an auditor and two independent levels of reviewers determent plaintiff was not entitled to receive that injunction should be set aside for two sets of reasons st plaintiff is not likely to prevail on the merits of its procedural due process claim point of his already received deprivation review of cumberland there were due process concerns and that those were at that that argument had been presented and that those concerns yes i think i think yes your honor but obviously because the posture was a little lot control this case yes your honor may it please the court thanks for the opportunity to appear today your honor cumberland does not address multiple issues raised in this case but let me start with the cumberland doesn't mention matthews vs eldritch kummer doesn't mention any of the due process cases at all and in fact cumberland mentions due process the word twice i read the government's brief in that case the government's brief didn't mention the procedure was adequate in every respect this was a challenge essential a facially to this decision and that challenge was reject it and it was the same system that said issue here in five levels of review to adequacy of those was brought into question and the court this court rejected that challenge your own it's true they rejected the challenge but in the context of mandamus relief which is a very specific type of relief not the relief that the a police all in this case in the district court has sought to give additionally none of the issues raised in matthew's versus kelly and the numerous precedent we've cited including rambis hechler one thousand nine hundred and eighty six decision of this court has addressed the the prompt post deprivation hearing rice that my clients entitle to under the th amendment to the constitution argument is based on his presumption that in bypassing the ale jay hearing just your argument it would be denying itself the opportunity to create a fold ministre of record the a l j harry thereby leaving itself without a record for judicial review the medicare act while ever does not support the hospital systems presumptions so what specifically does that cover of the say should be ok one of the facts we raised in our brief your honor that's apparent in the record of the case below is that there are missing facts in the administrative record that could be and frankly would be corrected by the j as my partner must be specifically  data that they make the judgment on your records that's the only records they can have in other words you have medical records you have purchase orders you have time records you have a client files they're all in your control and in this case those who are reviewed and determination to are made into real levels of review are made saying that claims were made that are not covered by medicare your o curiosity and if you're dissatisfied you go into v a o j and to the appeals council and you can escalate all the way up to having the district court review the problems that you perceive rightly or wrongly to be with the lower levels of review you can ask to supplement the record and whether you're layout too i don't know but you you go after that by normal the normal process of  go up from what you step up from one level to and of what you've decided to do here is to attack the whole system collaterally not to avail yourself of the steps that were made available to you but to go after the whole thing collateral which was what was done in cumberland and as a result here we are you're getting a hearing on something where you could have gotten a hearing on whatever your complaints were more pro the political branches have set out a scheme in political branches understand what the problems with that are our own we're not empowered to redesign that scheme through some sort of collateral review you're on you're absolutely correct what you're asking us to do your honor we're actually not asking this court to impose a single procedural issue or where you're asking for cross examination up of the st two levels no sir your honor we're asking for the court to simply stop recoupment until such time as the government sets the a l g here we're not asking for a faster hearing we're asking for a leveling field leveling the playing field so that our client can survive until the l j hearing takes takes place or got a terrible problem of overbilling here which is sending health care costs through the roof congress decided to address the problem by providing for recruitment it struck a skinny which falls right in the cart of congress's efforts to control over the cost of health care in this country and we don't have that kind of power your honor it's our position this case as a good example we have one of your principal billers in the hospital was one hundred and sixty times billing over twenty four hours a day and that same person build on the average over supported the fact that they were actually purchased or used or that the patient needed them and these were all uncovered from your own files and laid out in opinions and you had a chance to provide other documents to show differently  but i don't know how you contradict a document where one of your healthcare providers is one billion over twenty four hours a day and making a claim for it and now the hospital says that money we needed that money to operate and the district court thought well we don't want to throw big financial burden on the hospital so we'll enjoy it and then join in and it's disrupting the very system congress created to take care of these types of problems your honor i apologize of my may briefly respond to a question the issue is the calculation of the extrapolation which creates a fairly small overpayment to a large payment there's a what do they say is a one billion claims made extrapolation method in order to find out what's going on but you can provide a bigger sample you have you have the documentation and it's in your control and if you want provide a sample that's larger i mean they came in a couple of times by surprise and debt on it and what they found was what ninety three percent of the claims should have been to might this this hospital is over billing and that's what they found and now you want a court to enjoin the agency from collecting the erroneous payments apologize i'm not i'm not certain that soon the record co counsel has reserved some time yes or your hon thank your honor i appreciate your time today and i understand this very complex issue so much try and provide a lot of answers very quickly in twelve minutes is the threshold question to take up where co counsel left off if you have a right here it seems that the remedy you propose would equally be available to every provider in the country which would basically disintegrate the entire painless process actually that is not correct your honor because you still have to require you still have all the extreme elements necessary for the extraordinary rent an injection require and if i can point your attention here to get there generalize conditions in other words basically your argument structurally is the government shouldn't start recruitment at such an early level in the agency process no your honor the recruitment is discretionary c m s has the right to choose when and how to recoup and we have tried to work with  contest the recruitment provisions before the appeals council if you still don't largely and you can contest the timing of recruitment before a federal district court but what you can't do is go africa laterally in the face of a circuit precedent that is dead set against you and your honor i would respectfully ask that you focus on some of the very specific mechanics of the process very respectfully your honor carlin was asking for man damage trying to force the hearing immediately my client is you are which goes back to my original question it seems like all of them could be of audited subject to the same recruitment problem in if the remedy you see would be available to them whether they get or not it would just disintegrate the entire payment system which congress is set up and as we recognized in cumberland while you may be making a due process argument the remedy that you seek seems to violate the separation of powers actually your honor does not that is a hyperbole based on no specific statistics whatsoever set forth in the breach of the government but there is no evidence of hundreds of his house are you're on the legislative and the executive branches have come up with this methodology now the methodology may be deeply flawed which is a question you would take up with the congress but they've come up with this methodology under their power of the perks and you're asking us to enter into this was a slate of an executive feel and rearrange it which would seem to me to be a violation of the separation of powers to pinpoint your question are we are not we are asking the court for an injunction of a discretionary act we are not asking the court to change the system and medicare peals process works very there is a remedy the remedy is to follow the process you disagree with and challenge it on the way up or war which i think would be the strategic decision in view of the backlog would be de escalated to a district court where you may get a very full and sympathetic hearing and i'm i'm sort of surprised you guys didn't escalate this thing up from the very beginning you're not and this is exactly why we went through the time to us i need the court needs to very understand a limited review of the district are in argument and every other argument that you've made your challenge in the structure created by congress because it's unfair to you but it's unfair to everybody it's a bureaucracy and in cumberland we criticized it quite significantly as a ten year back then ok and you're and so it is a problem but congress is aware of it they're addressing it apparently they've got it down to still an acceptable what they're looking at catching up by two thousand and twenty two or something like that  which is now three or backlog from the ten year incumbent but it's still a problem and your notion that they shouldn't begin recoupment so early because it's hurt you financially that's what the that's what the structure is ok and your are that is a discretionary act and i want to highlight as we get closer to this the extended repayment schedule was not taken because c m s has no discretion to go beyond sixt escalate through the system and then a rd one is i understand you could spread the terms of repayment and in any provider can extend the terms of repayment over a five year period honor to answer your question specifically because that would require my pet client whom i represented in this process to pay one million two hundred thousand dollars per year and his total revenue per year was seven hundred thousand dollars so he literally couldn't afford it wasn't any way fiscally possible in c m s does not have discretion to go beyond six thousand and sixty flat amortized payments they don't have that discretion if you have if it's anything outside of those that statutory bounds it has to go to treasury and if the debt goes to treasury the providers in collections and file litigation from the treasury and as potentially be going to be excluded while they wait three years for their hearing that is mandated and there's no ability for them to even get the evidence that is the health care services that to dispense i don't know the answer to the out book there is a system by which a question of whether you know you are the innocent party you claim or that you significantly overbill your government and what we know is widespread a problem of overbilling causing the loss of many many millions of dollars every year that can be spent on so many other worthwhile health protection for the system that congress has laid out has given you pretty deprivation protection both before the a m a city and then before qualified medical professionals and secure os city level to explain their decision now given the volume of healthcare providers is there a health care provider going to get every cent procedure they want is every health care provider going to achieve every outcome a walk no but we have also some it's not but it's the best we can do and and congress is trying to make it even better but as both of my colleagues have said we have no authority to turn this procedure inside out and dictate the timing of agency recruitment efforts and and saying that congress has has struck the balance wrong ack i couldn't agree more with my current judge agency that this is a separation of powers question it really is and about jumping into something that is so clearly within congress's power of legislation and congress is founder of the purse this court has authority to restrain a government agency for a discretionary act that is depriving someone of constitutional due process that is wholly bound in this mr herring  the whole premise for our intervention in changing the system is that the agency is doing something unconstitutional your honor a denial of i'd like to hear from you precisely what has the agency done that's unconstitutional the agency has withheld a constitutional rights to a prompt post deprivation hearing of a property interest for north of three years and caused irreparable harm cumberland and the answer to that is if they're delaying their response to your claims or your challenges you can escalate and go to the next level and your honor that saves the system because it gets you into a court and your honor i am asking the court to focus on exactly what is not available by escalation i do we do not get it to nova in the system no your honor asking us because the system gives the agency the right to do what it's doing it is collecting as the statute authorizes it to do whether it's discretionary and not it authorizes it now the only way we're going to disrupt that is if they're doing something unconstitutional and your argument is no it's not unconstitutional i don't quite know what your argument is no my argument is basically they're not complying with the statute my my argument your honor is that under the constitution of the united states you are entitled to a proper post deprivation hearing and we have a litany of case lined that challenges the system because the system has time periods built in a specific time periods and if those specific time periods are not adequate a under the constitution then you're challenging the whole system you can do that but that's a different issue i understand pretty big issue here i we're asking which i believe the district court correctly ruled that this court has authority to intervene and enjoying a discretionary act in preservation of a mandatory duty which has been found to be the constitutional embodiment of our due process rights in a nail jay hearing what we do you want us to do  overruling coverage which is a panel we have no authority to do your i can answer that very specifically cumberland was a man damis request asking to force an agency to dictate we're not asking to step out of the three year for  are asking to survive until we get our day in court in our constitutional hearing that is all we are asking for your survival is based on the agency's at least your argument is based on the agency's exercising the authority the statute the regs give it and other words the it's question ery action by the secretary in collecting now is based on the secretary's conclusion that you've been overbuilding the record that i looked at looks like more than just overbilling it looks like actually it looks like fraud from what i read the little bit now i don't know if anybody's accused that alleged that but the things they laid out were very serious and and i don't know if they were deliberate but it doesn't quite add up and your honor i'll be frank with you you spoke earlier in this hearing that there was there was time period issues and there was wheelchairs and there was a link for things not even covered by medicare ok and they decide and you haven't really disputed that i mean that your your are yes we have very thoroughly and i watched all right yet and the merits that the court keeps referring to of whether or not my client  provided claims addict adequately or not is not before this court it's not before us but it was before two levels of the agency and after two levels of the agency they reached the conclusions that you were overbilling and they wanted to recoup now for a court to come in and nd guess that decision requires us to intervene where every other hospital could also intervene because they make the same claim  providers and to be very clear we still overturned forty four percent of those nd level determinations at a l j hearings today and agency system is designed you can get them overturned  you can appeal them higher and you can actually get to a full hearing before federal court your id the system does not allow what you just said it does not allow a hearing past an a l j it does not allow a hearing on the merits past the nail jake if we are missing evidence as we specifically are in this case to prove our case we only get remanded to the l j the only statutory authority given to the council or to the district court is to remand it back to a hearing so we've been waiting three years for a constitutionally protected hearing or judge who has seen how to read differentiate your case from many many thousands of of those and if we if we can persuasively differentiate then we are indeed overturn no system actually are i can answer that for you exactly if you look at the precedent that is going on right now at the district level with this to determine irreparable injury and a balance of the harms under extraordinary writ and i do believe this court does because cumberland was asking this court to force the government outside this process we are asking this court for this process and we are asking you to trust your district court to assess whether the elements of an extraordinary writ were met with all the process of the process and your honor matthews versus olders clearly says collateral tack is appropriate and there is subject matter jurisdiction to make that collateral tack and we are asking for a collateral attack on it for a denial of due process forward to restrain a discretionary act honor i trust the district courts a lot of them are thrown i'm out i'm having i am having substantial difficult in understanding the basis for your claim that due process is with the nod without challenge in the system you're basically saying that the secretary in rejecting your claims at the nd level and starting recruitment violates the comes to to know no you have to be no no i'm not what is your argument i don't understand i argument your honor is that we've waited three years for what the constitution requires and we were dying we're just going to have to step back you waiting three years for a system that's causing delay but the system has a violation to even get into equity you talk about the relevant harms and so forth we have to have a cause of action in the model understand your cause of action by cause of action is a centrally that the secretary is not apply in the system but you haven't pointed to anything he's not applying except for the time delay and your honor and the time delay has the escaped the house every u s supreme court constitutional answer my question oh yes and i am i don't want to hear about the case no i am about your missing evidence that we've never been given and my only ability to get that evidence what evidence whatever dence do you want a rat stat underlying data to prove the math in your honor it works like this with extrapolat case is on the math and basically what we've been given twice and what's been sustained twice is basically here's my problem here's my answer and they didn't do their work they didn't show their work  this court's power to fix everything and there are there limits it's not that there's a who are not sympathetic to what you're saying but there are limits to what we can do one of the limits is stepping out sad the normal escalation an appeals process and entertaining collateral attacks which we would be flooded with and the other thing is the other limit on f r d is basically we your testimony who would have been very persuasive in a different forum in that forum would be a legislative hearing and draw attention in the legislative hearing to the hardship in because the system is set up to provide escalation through direct appeals to ever higher levels i just take these wonderful arguments you have to come across the street and  and and you may think find a sympathetic ear because i don't think that congress is insensitive to the problems that you've outlined and your honour's i know you have been very gracious on your time and and patient with and expresses it so i just want to say thank you and thank you very much your your honour's i appreciate what's your response to that so obviously we're working here on a record that is just the record of materials that they essentially introduced in district court but if you look at j a thirty nine there is a reference to that there and how we gave them an encrypted c with all of the methodology that went into that documentation if you look at j a one hundred and forty eight dollars it's a page from the decision the nd level reviewers decision that noted that on the materials and record the employees a statistician in that that  the method and that a statistician independent of that was able to duplicate that extrapolation well yes your honor that's half my argument but the other half and the last document i point you to is j two hundred and twenty eight which is their expert report saying all of the material they're expert reviewed which clearly came from the auditor but even if you set all that aside let's say we didn't give them some documents they were entitled to that's a very good argument that they could make if they escalate and go to district court and say that the that  agency decision isn't supported by substantial evidence because the materials aren't in the record the agency has every incentive to put the materials in the record because we know there is a potential for ultimate judicial review and we need to have that record in there there's good reason from the joint appendix here to think that those materials are in here but if not they're free to argue that in court and