take your time and set up let me go ahead and call the cases these are cases consolidated for oral argument the st one is or one of them is m s p recovery claims series l l c versus and let me see if i've got everything right so you're splitting your time thirteen and seven right that's correct and i have with me may hear my colleagues from a grandmaster who represent an s p claims one in the liberty if the particular liberty matter they are for the you've got seven minutes and then miss macallister you've got three and mr friedman you've got seven and mr russo you've got three ok we're set to go fire away the order in which you're going to address the the various issues there are a number of issues obviously have been raised my intent here is to address what i view as what we view as the big ticket item which is whether or not full risk organizations have standing to bring a private cause of action under one thousand three hundred and ninety five y b three ok and then subsequent to the extent that the court has questions to venture into some of the pleading arguments that have been raised and addressed the assignments although it's our position that they've been addressed  cases that have been before this court was recently on its face this case is about who may sue under the m s p private cause of action but a further look makes clear that it is in fact about the functional parity between the medicare advantage program and medicare which was recognized by this court in western heritage and which was extensively analyzed by the rd circuit in in re of and via the standing tests announced in the ace american case is in fact  an unsupported an arbitrary standing bar i mean before you get to that is this really a standing issue in terms of what article three requires or a question o who can sue under a statute which is a related and overlapping concept but not always the very same one that's where you are in in a sense the case presents the case presents both as as is often the case in in questions of statutory interpretation it's our position as raised in the in the briefing that article three is the centerpiece here at that and that's exactly what was stated in western heritage that the case law that tantalize the n s p x privat cause of action in fact places no further requirements on who may bring a private cause of action in the event of a primary planted or any to retarget your preacher is saying is that the key here is whether or not the plaintiff was was injured or article three standard standing constitutional standing analysis and that would be the so called limiting principle that everybody can walk in and use this private right of action and the other side is saying anybody who ever touches that any of these things as a right no these are people who who can point to some injury if they can't sue based upon the mechanisms that are in place at the time the contractual obligations and are everything else is the same that's exactly right you said and what you're saying i guess is that the capitation program which applies to the m a o who's which is designed to reduce costs and force the person who is who is the ason he to to try and obtain recovery obtain recovery but also keep the medical costs down in order to realize some profits by virtue of their business business plan applies to subcontractors just in the same way it does to a man that's correct your honor the where i would wear the only the only nuance that i would add is that i think subcontractor doesn't quite capture the true nature of the of the assigner that are at issue here just the way you are describing the medicare advantage plan takes on the risk from the government that's the nature of the program this is an art and in this instance what we have alleged is that these downstream entities and or to two point five zero four which deals with the how they should operate and what the requirements are incorporate them within the system into arrangements to take on the substantial risk and providing at the overall picture here of the cost savings that are supposed to be in your into the benefit of the tax payers if you will you're dealing with these various capitation limitations which are set forth for the m l and then for the downstream entities they work together in that sense each one is as i understand it but correct me if i'm wrong each one is a is a sort of a there's also the risk there's also the risk aspect of it which led to pearson it wasn't appreciated by the local they have to they have to either pay the beneficiary or reimburse somebody upstream who's already paid the benefits exactly so it's more than simply a payment for services that comes from the medicare plan this is a it's a capital it's a government capitation it's identical to what was at issue in western heritage so that's eleven aspect of trying to control costs during using this scheme the primaries are not stepping up after those payments are made to reimburse they're waiting and there's it's obviously from an economics perspective to their advantage to do that put it off as long as possible and have the lawsuits come in in his limited way as possible and that's why what your client is doing is is problematic from their perspective because it aggregates these claims just so i'm trying to understand in this from a economics perspective without the primaries paying the cost then i was shifted to the taxpayers and through through the medicare system the m a o system and so forth  if the primaries come in and pay then the taxpayers are leaved of this risk to the extent of the of the primaries obligations the tax the tax payers in the sense of the way the system is in the way the system is structured obviously as described in detail in the rd circuits in ri avandia opinion it works on a system of bids and risk factors and that's exactly so your honor has has hit it right on the head when this money is taken back into the system the utilization goes down as a result those funds are conserved and the bids can go the bids can be more competitive so you have you have two different results for the for the medicare beneficiary it's it's both that the cost goes down to the medicare system but at the same time to the extent that bid remains the same at that point the medicare advantage plan and the full risk organizations that have been described in this action are able to compete for these medicare rowley's by providing additional additional benefits above and beyond what original medicare is able to is able to provide which was the other purpose of creating this type of competitive system what is your response to the arguments of the other side that they they really are not disputing the  a survey of dockets around the country would suggest that they that they that the private no fault in liability insurance industry is willing to read as many requirements into this very simple cause of action as possible to avoid paying for as long as possible  i've as we have highlighted here there is really no fundamental dispute as to whether or not and we can use the auto owner's cases as an example there's no dispute that a settlement was entered into there's no dispute that it appears that owners ma  no made no effort as was described as required as described in western heritage to identify whether or not the mail was out there and statutory requirement or is this just a matter of  that's that's clear but what about when they don't settle when they don't so so we have to these cases present two different scenarios for demonstrated responsibility where there is an instance where a settlement hasn't been entered into then we have an instance where them where responsibility in that context has not yet been demonstrated the plan the primary payer is not yet a primary plan for purposes of the act in the alternative we have no fault classes that have been that have been asserted here no fault classes proceed on the basis of no fault contract contractual no fault obligations which were at issue and discussed in this in the circuits all state opinion the contractual liability there the demonstration of want of responsibility is accomplished by virtue of the no fault contract which requires the which requires the primary plan to reimburse the secondary medicare is secondary medicare payments so if there is no settlement that is a defense that certainly certainly could be raised it speaks to demonstrate its speaks to the demonstrated responsibility but that isn't what's been alleged here clearly the settlements at issue with respect to the two settlement claims have been clearly enunciated in the pleadings and are represented here or hope separating them into those into those two categories in this in this world is the concept of an assignment different than it is in any other area of law in other words that if you have a breach of contract  right that you can assign for consideration to someone else's or is there anything about this area of law that makes assignments different no you are general principles of law playable here general principles of laura political and that was also detailed in the eleven there is no approval that's correct your honor based upon a series a good body of case law which was cited by by my colleagues from your representing representing m s p claims one l see as far as i remember and they might be able to speak speak to it more more directly because it doesn't necessarily present itself in a very it might be different if if in that particular agreement there was a specific reference to rights rights or have it from that's correct but that was not that was not the well in light of the if there are further questions i'll reserve the balance of my time here thank you got it thank you very much to address at one point and that is whether or not any dismissals that were purely for lack of article three standing should have been without prejudice those sorts of dismiss that's between the parties in later litigation but they generally don't bar the party from for example adding allegations that should have been added yes the show standing so and i don't need you to answer it but i need someone to talk about whether or not the dismissals that were article three based only should have been without prejudice i was just about to say that as in our brief ace is to travelers on that issue which was the sole issue raised in the traveler's appeal and mr friedman will be addressing that dismissal with prejudice for all the  case is a bit of a unicorn case if you will it is very rare that you have a district court hearing in which the judge provides a road map much less three totaling twelve hours where the judge repeatedly gave the plaintiff instructions on what should be pled in the complaint and yet the plaintiff failed to do so were on the plaintiff's th complaint and yet the plaintiff has still failed to plead the allegations regarding the m a o which art is not named in the complaint and the relationship between the m a o and the assigner here so on that basis alone the trial court correctly dismissed this action the assigner here further to address some of judge walker's questions did not have was not admitted and did not have the same standing that an m a a would to show damage and to assert a claim under western heritage  for a very good economical reason because the m a o still retains the right to assert that claim so as discussed at length in the amicus brief there's not going to be double recovery right  this court were to allow a an assignment excuse me and assign a war who is not the m a o to assert a claim and the m a o still has the claim under the statute under the there's no allegation about that that's what i want to stress to about the ace is that the judge was the judge said to plaintiff's counsel i have lots of paper i don't have lots of facts here the facts that i need we don't have anything about that for example there could be situations where they have this the subcontracts the m a o and management service organization contracts perhaps prohibit the management service organization from proceeding where that where they perceive pretty prohibit them from asserting claims without the mams consent furthermore if you look at the hearing transcripts before a judge cites ace came into that hearing with a claim file on one of these claims and judge cites order to recess or a lunch break or something like entered into a settlement it paid so the allegation that there's never been a payment here that's just factually incorrect and it was there are no payment i mean that a carer's a different from a different thing medicare was involved  well no your honor the the the obligation under the statute is that the insurer reports to medicare that's a public a public extinguishes the claimant point no no no no just so that then it becomes public knowledge that in fact there has been an accident there has been an acceptance of liability  use her as an example because she's the one dollar that you mention to what extent was judge cites asking the plaintiffs to prove their case through their complaint as opposed to make a plausible claim your honor i think it definitely the latter as i said she said can you tell me who the m a o is can you tell me what the relationship is can you give me why you are suing a sweat was the action that led to that what what's the alleged money can you tell me what money you paid meaning the assigner and in fact the assigner all the assigner said as we were charge that was a charge under their private sub contract that wasn't a primary payment i mean i'm sorry secondary payment for which they're trying to recover from the primary charged against the against humanity perhaps we don't know the terms of the contract your honor that the contract is there's sort of a wall if you will there is the public information which is medicare and mayo's the settlement that a notified medicare about that's all public then there's this wall and then the m a o can have a contract with an m s o which could have another contract which could have another contract there could be multiple layers of sub contracts and that's not known to us there's no way that an insurance company can report or give information to somebody on the other side of that wall are only obligation is to notify medicare  regulation for twenty two point five floor which requires short reportings and certain contracts contracts have to be approved by medicare all these these contracts have to b there a record kept by the medicare of these contracts all these other contracts no your honor they have to be well i shouldn't say i don't know the answer to that but they are not publicly ascertainable whether they are kept on a website correct correct whereas the m a o o's are all identified so you can look them up  time is at an end so if there are any other questions if you very much ok i'll defer to my colleagues originally four cases that were filed and eventually at the end they were all consolidated into one as a result of that we were on the th complaint by the time we got to the motion to dismiss  in our case judge sites made an appropriate decision there were two alleged sources of which plaintiffs allowed allege that they could sue the st one related to everything up i believe he had the liberty case judge sites head all of our cases ok all right thank you no problem one is that so that each fact that you're talking about now back  they told us that and as a result of that in this appeal they have said we're not going to contest any of the health st administrative services dismissals and the only thing we're going to contest is whether it was with or without but they were not named in the complaint nor was there any evidence that they had given an assignment to the entity that they did name and calling them a ruling the ruling was based in part on a conclusion or a finding the only country they had pertain to administrative services management services they did not have a contract that would have provided them which would have required them to pay for health care and that's why they've dropped it so in other words not an assignment entity that formed a basis of a claim against the auto innards group was very mad they pled that very mad was in fact the provider and then we demonstrated through exhibits g and i that they attached to their complaint that  fact was not the provider in those exhibits demonstrated who was the provider and it wasn't the same entity so very mad has no m a o i assignment it is not alleged to have done anything other than supposedly paid for medical care but when you looked at their exhibits in fact there was no payment for medical care that was made by them and their own records they submitted to the court so my three minutes is over  the court has any questions for me was on the very med was that determination that the district court made factual in nature or facial in the it it please the court my name is bryce friedman and my firm is simpson thatcher my client is travelers and i'd like to address the question the judge jordan asked about you with prejudice dismissals and in the course of doing so respectfully disagree with some of the premises of judge walker's questions about the economics in the way this works the traveller's case what does a citizen was issued by judge williams and the issue on the traveler's appeal is whether the district court order should be affirmed in so far as it was with prejudice they plaintiff and appellant has not appealed the merits of that decision so our st argument of course therefore is that pursuant to at least fifty circuit precedent i don't think this court has addressed the issue the just with prejudice without prejudice issue is waived as for the actual decision as to what that means so in the xemu d o case one hundred and twenty nine in federal pen dick seventy nine you can't appeal just to with prejudice or without prejudice if you don't appeal the merits of the of the dispute so it is that makes sense that makes sense because the because you would have to show that the dismissal was not appropriately without prejudice and to do so you have to address the any or lack of proper been right and you don't disagree with the ultimate ruling of the district court that venue was improper but the district court dismisses with prejudice why shouldn't you be able to  appeal the with prejudice parts and say you're aggrieved by it and then be able to file in a place where venue is properly laid i can see your perspective but that is not this particular case in this case the dismissal close no i don't think so because in this case it was for statutory standing and in the case of statutory standing there is no question that that is a merits twelve b six with prejudice type dismissal and the fact that the orders the orders here to the extent i can remember them are so much paper in this case some of them i don't want to say all but some of them sort of blend the statutory standing with the article three standing so that it's unclear at times what sort of standing is being referred to but you don't know whether or not like you said it's a statutory dismissal because there's really no cause of action through lack of statutory standing or whether it's article three standing because you haven't met one of the three prongs dictated by the supreme court will two points on that st of all i think it's pretty clear when judge williams for example says the plaintiff has failed to allege in the auto owners and pages eight in the owners say the same exact thing and i think it is erroneous to assume that statutory standing in this case is coextensive with article three standing because it is not it is not none of these district courts mentioned article three and their orders absolutely did mention article three of my point and but i would you mention article three in the context of discussing statutory standing if article three isn't involved in some way because i think that one of the arguments that the plaintiffs made below was that the standing under the statute was coextensive with article three and that is not the case that would be for this court to suggest that would be an  because it is not coextensive what the court and to rule that the f r ozen in what your honors are being asked to rule have standing would be inconsistent with this court's decision in harris and this court's decision in the blue cross case brooks because what the court did in those cases which present very analogous facts to this case is said what is the extent of the statutory standing under the  x and let me explain that for one second what they are arguing here is that their f r o's which judge walker is correct are referred to generically in the in the register in the regulations as possibly existing but not in any of the complaints that are before the court argue that those automatically have statutory standing and that is incorrect and here is why if you look at page forty two of their brief which is the place where they describe what an f r o dollars of the brief is the only explanation we have of what that is because it doesn't appear anywhere in any of the complaints and what they say there is that the m a o the medicare advantage organization which is the government entity that does all the economic things the judge walker was asking about was paid back one hundred percent in full let me say that again the m a o which is essentially the government here was paid back one hundred percent in full and what they are is essentially an insurer of the o and in the howrah scase this court said when you have to insurers when the government has been paid back the conditional payment is one hundred percent paid the government has no claim and you have one insurer says the other insurer i paid it back  hundred percent so you other insurer need to cover the other piece of it you need to put in your path to how this court in harris said no statutory standing and that makes one hundred percent sense having having the downstream entities all of whom have some economic relation into involved in providing medicare benefits to medical care beneficiaries fight among themselves how to split up that money is outside the zone of interest of the statute  that b because then if the if the if the service that cleans the doctor's office or the or the person who takes out the trash who is somehow shorted money and they attribute it to a a failure of a primary payer to make it conditional payment then you have all those fights come within the construct of the aca it's not the case those people but those people aren't making any payments those who described but what's the difference between being out money and make a payment the f r rose as described by the appellants are just insurance companies they don't use that word but if you read the regulations the judge walker cited that's what they are they take the financial risk of providing the care the m a o says i'm going to go buy some insurance from a f r o a full risk organization the full risk organization ensures them a zero so the m a o is out no money and now you have to insurance companies fighting over who is responsible for which part so i will say also just for the record that as primary payers my client is interested in making sure that it complies with its obligations under the act and if there's another insurance company out there that says to my client perhaps you always some money because you are a primary pair my client is going to try to make good on that but we can have here is a bunch of secret arrangements which are not available to anybody and they are not available to anybody it's the form of the contract that is approved by medicare not every contract some secret arrangements in which money changes hands over there and then all of a sudden you claim you have a double damages act against my client that's not how the zone of interest works under the statutory doesn't have my cell phone so i can't look up the federal regulation as to whether it's the substance of the contract or just the form i had been under i was under the understanding that the contracts themselves were each contract was approved so i'm under it maybe we're saying the same thing but if it's a contract with joseph r o i don't know that that particular contract is approved as opposed to here's the contract we enter with all our f r owes these are the words that are in that if it's not it's one in the same it doesn't matter in other words if it's a form contract it's approved absent form contract is used all the time that it doesn't really matter you've got what the contract says yeah but just plug in the names and i don't accept the premise and i think it would be an incorrect premise for the court to say because there because a regulation mentions a a prove all of a contract that somehow that provides somebody statutory still standing to differ that's of the yeah but that's what i'm focused on because that's their argument their argument because the regulations mention us and they contemplate somehow we are involved in the health care system the medicare system therefore we have standing that's not what this court said in brooks is that somehow they're saying if they have risk you're saying that that's that's the kind of risk that is not contemplated here but  they are saying it is the same as well but but i don't i would request a court not lose track of the statutory language here the statutory the case that my colleagues cite the appellate side is the alabama tombigbee case from the th circuit that's the court they cite this case they cite to support that they're standing that's a case under the endangered species act in which the statute says any person can bring a suit that's not that's not what our statute said our statu says there's a established a private cause of action in the case of a primary plan which fails to provide for primary payment the question is then where there is no there's no specification of who can sue but there is but and i thought judge site said that's the limit but those cases don't set limits those cases just say those people consume they don't address others they don't say and specify who can't sue and so that's the issue then were flown back it seems to me on the particulars of each case and whether there was proper pleading in all of that well i think lexmark requires a statutory analysis of statutory standing before you can you just revert if you article three nothing in there's nothing in that provision in question that specifies statutory stay well i would i think that what lexmark would tell you is you have to not only read the statutory provision but you have to read all of the act and all the proof the surrounding purpose to gather what used to be called whether prevent you to apply what used to be called prevention standing around whether somebody should have standing here two points on that one is i don't think there's enough in the complaint for your honour's to rule that f r as have standing i think you need to look at the complaints before you because any decision as to who or who shouldn't have standing is got to be based on on what is in those complaints but if you take at face value what's in their brief i will tell you that they don't fall within the zone of interest there's no congressional law or agency act that puts responsibility on them to take care of anybody to make any payment to do anything specific which morphism that would be part of the problem but more importantly i think the point here is the m a o this court has decided is clearly in the zone of interest that's what was decided in western heritage and the rationale for that decision is very clear and simple and frankly make some sense which is that an m a o makes a conditional payment that's what this is about it's conditional payments and where the mail is paid back and here under the thing under the sis under the facts posited by the brief them a always paid back the  government system his work this is now a bunch of separate arrangements that have nothing to do with what that primary medicare secondary payer act is about and granting them standing for double damages under the act you would  to court my name is anthony russo i represent liberty mutual fire insurance company the issue in the liberty portion of this proceeding is smaller and it is controlled i would say by t cases i d s property and casualty insurance company versus m s p a claims one l l c who is your appellant here today and the tenant case were a part of the tenant case this is a smaller case this is one judge walker where we are looking at the specific nature of the agreements and whether they are valid and in this court's judge williams ruled that they were not valid in that there was not a valid assignment at the time of the complaint and therefore dismissal was agreement with the same plane of said that that agreement was invalid to convey an interest sufficient for m s p a claims one to proceed with its class action it claims that as a result of the  our argument there were two bases in judge williams inion that were asking to affirm and i believe that the i d s case from the rd district court of appeal mention both of those certainly if you go to the public record of that case which are the briefs that are available and westlaw of the two k of the the two parties argued vigorously they they got into the weeds with the nuts and bolts of this lake contract and the rd district adjudicated the contract issue that is before the court here now that i d s case wasn't identified in the initial brief of my of my pony we raised it liberty did in its answer brief there was only a at that  time there was not a west law cited as two hundred and sixty three southern rd one hundred and twenty two it was not addressed in the reply brief of my opponent and i didn't hear anything today yet so the st time in a year of litigation that liberty will have the opportunity to hear what appeal as a matter of state contract law accepted the lay agreement was not made with the recruiter with the required approval of florida health care plus which was the medicare advantage organization given the peculiarities of your of your case was a dismissal on article three grounds or statutory standing grounds judge the judge identified it as article three and she mentioned and discussed why you look at that history the case that is that shouldn't matter i mean if you're dealing with merits issues that does matter a lot right because you only get so many bites at the proverbial apple but if you're dealing with something that is subject matter jurisdiction base and doesn't address the merits those dismissals are generally without prejudice they have precluded of effect between the parties in subsequent litigation but it doesn't prevent a party from filing a complaint that satisfies subject matter jurisdiction and i understand your honour's concern there was a facial challenge there was a factual challenge and this dismissal is granted on both and i  leave i mean make it harder for them to ever sue again if that's the case but it doesn't necessarily mean at least as i understand the doctrine that it should be with prejudice that they can never ever try again but maybe i'm wrong alternate grounds that we identified in seven minutes is not enough but you can try if you let me go a little bit longer at what if once we get into it we begin by responding to mr friedman's point because he has raised the essential fallacy that runs through the  briefs and that is that the theory that the apple e's advance regarding subcontractors divides the medicare advantage program up into component parts ignores the risk and seeks to in essence eliminate the cause of action it's very clear what has what has been alleged here is that the signers that issue bore the full risk they made the payments they entered it they entered into a contract manage the care and have done everything with respect to these with respect to these particular in ro they are the payer and they are the provider that's that's what vera mit is that's what an h c s are what the what the police argument fails to fails to recognise is that the injury to the medicare advantage program that the private cause of action is intended to remedy remains as a result of the failure of a primary plain i'll add for the court the the appellant's here are in no way a primary plan  and this brings it squarely outside of rocks which concern to a dispute between two primary plans outside of the medicare industry this is a this is about a primary planes failure to reimburse and the interests that have been affected as a result of that failure to reimburse and those interests have already been discussed at length in western heritage there the court looked at the precise risk that was suffered but that was taken on by the medicare advantage organization and the injury that was suffered by the medicare advantage plan as a result of the failure to reimburse that is the precise risk which is borne by the forest organizations here and it is the precise injury suffered by the forest organization here the injury remains within the medicare advantage program and has not been remedied the simple fact that the reimbursement has been made to the medicare advantage plan by the full risk or going to zation underscores the underscores the point that the the injury the injury in fact and the right to come before the court under one thousand three hundred and ninety five dollars y b three a under the article three standing test rests with the full risk organization the risk bearing entity which is contemplated throughout the statute as has been as has been discussed thus far and when we that one of the one of the contentions on the other side and one of the rationales that one of the district courts provided was the do you have just had pleading deficiencies because assuming that there was general standing statutory in article three to proceed that there wasn't enough specificity or information in the complaint for the court to be able to figure out whether or not you were properly there were not you want to address those points your honor it effectively your earlier point i think is it underscores the the appellant's position here what happened is that the the approach this been taken by the district courts is one that requires proof beyond rule nine at the at the pleading stage what we actually have in the in the complaints that are ever expressed that are before this court in auto owners and particularly in ace it specifies clearly that high g m made payments express surprise clearly that h t s made payments for the kit for the particular items in service and it serves a mayo's it says that they it says that they made the payments and it describes the system within which they within which they work it doesn't this may require stage to call them just just insurance companies these are not just insurance companies this is medicare this is medicare this is privatized medicare which is respected and codified under medicare part c this is the system and ultimately the the decisions in the lower court proceed based upon a misunderstanding of the system and the risk that is concentrated in how much do you have to put in a complaint of this type to satisfy the ru twelve both be one and be six that you are the right person to sue for the request the relief that's requested what do you have to say are little can you say the elements themselves are laid out in western heritage it requires a primer it reprised require status as a primary plan which we have plainly alleged requires a failure to reimburse which is plainly alleged and it requires damages which are plainly alleged by nothing else by virtue of the payments those are the elements of the cause of action that's what entitles a party to point to summary judgment as identified in in western heritage with respect to the with respect to twelve b one again we will look to article three and so the injury an injury need have been have been identified and it need be fairly traceable to the acts of the fed and the injuries that are identified and detailed particularly in the auto owner's complaint with very med they flow foreseeable eat and directly from the from the failure to reimburse by the primary plan or do you have to allege of anything with regards to assignments in cases where the is w injury to the to the plaintiff in the action the obviously a pelleas have raised that the that m s p recovery claim series l l c is outside of the chain and doesn't necessarily have standing to sue but other courts that have looked at the same thing that at the same allegations have noted the affirmative allegations regarding m s p recovery claim series all see that identified in each of these complaints which plainly state that the limited liability agreements and that are in place between the series and its designated series too far oh you another f r o etc and then eventually to you that's the assignment there are two separate assignment issues that have been raised by the apple e's one regarding the actual chain of assignments that entitles t to bring its case and the other that that posits that of a full risk organization would require an assignment from a from the medicare advantage plan to be able to pursue this to pursue his case we have alleged that a full risk contract was entered into and that full risk contract provides the certainty with respect required for art to satisfy article three with respect to the to the injury that has that has been suffered here no further assignment is necessary the injury is singular and particular particularly to the point to the assign or in the action which is the full risk organization the entity that they took on the precise risk that was shifted from them from original medicare over to the medicare advantage plan let's get you maybe over the constitutional  the article three constitutional question but then you also have to have the have the other prudential question about whether or not you can say the claim here is to pawn allegations of some sort of assignments of the full risk organization to bring the suit we have we have two separate sets of claims here the one regarding health st administrative plans we posit that there was although a perceived error in the assignment it was always the intent for the actual health health plan to assign those claims which was health st health plans inc and that was laid out in the affidavit of michael keeler which was reviewed by the th circuit and and also in the lower court in order waters separately is whether or not these full risk organizations are embrace within the statute within within the purview of parties that can bring a claim under the under one thousand three hundred and ninety five dollars y b three a and thus had a claim to assign to assign here based upon the statutory structure that your honor has has been detailing throughout these this proceeding spectrum of plaintiffs that have been recognized to be able to get it as having statutory standing to proceed under three thousand nine hundred and five dollars b three it begins with the medicare advantage plan the actual party that's making the payment the conditional and those and it's payment have been recognized as conditional it proceeds down to the provider and it goes further to a medicare beneficiary that suffers an injury in fact and is able to bridge is thus able to bring a claim we fall squarely within this recognized spectrum we're not asking anyone to venture outside of it we're not creating anything novel whereas this party serves by virtue of the statutory structure that's been put in place the full restore going to zation serves as both payer and provider and it makes no sense to carve them out and to create a series of payments that effectively would would not be recoverable because ultimately the medicare advantage organization has been reimbursed however the the medicare advantage program has still continued to suffer the the injury recognized under one thousand three hundred and ninety five dollars y b three a which is concentrated with the f to zation so in effect what the what the police are advancing would be a tacit reversal of of western heritage by carving out as a whole subset of payments that would no longer be recoverable and we would ask the court not to ask the court not to do so called thank you very much has been very helpful on all sides of the only thing we can promise is you won't have a decision before the end of the year so we're in recess