posner did not yet find that it was time for maine damus to issue against the secretary to compel her to abide by her statutory obligations we are here in november twenty fifteen to suggest that it is time there's no serious dispute that the secretary has a non discretionary statutory duty to resolve administrative appeals within certain timelines the issue i think is not there's a point at which the jurisdiction merges pretty quickly with the merits but don't we have to separate that here for purposes of our view to the extent it equitable we were due for a decent discussion that's correct  that that makes sense i mean i know you know we've said that but is it may well have been the case in december of two thousand and fourteen that the district judge's decision you know might have been within his discretion at that time he might have seen in addition in the record that gave him some comfort that things were moving in the discretion he here is where things stand even judge posner understood that when you got to the track factors he declared it to be essentially a very close call there were factors that clearly counsel in favor of maintain unlike many of the undue delay cases of this court sees there actually is a statutory directive attached to this this what is what about the district court process the escalation process to avoid all the way to the district court a couple things first of all if you look in the record of joint appendix one seventeen you'll find a declaration from const as to bias who is the chair of the department of appeals for one of the things she says is i have never seen someone isn't that good enough at the district court is reviewing these fairly quickly because as we said in a reply brief as a as a practical matter and setting aside by the way whether whether escalation to the district court actually is an adequate remedy for what we're talking about so that's what i'm exploring is that an adequate remedy but i question so our position is that we are entitled to a remedy at each stage of the administrative process so setting that argument aside once you got to the district court the district judge would be presented in this case assuming that you've got the backlog you do now with just under a million claims that have no record attached to them whatsoever exactly what district judge in their right mind would remain and all the way chaos and congress will probably react but i don't see why in individual cases that one would be good enough for your clients to go to district court what the and i don't know what kind of review there be industry it could be dyno review with trial why procedures if even if it were to know who review we have a suggestion in the record already from the departmental appeals or and we've cited this in a reply brief this is the pembroke pines case we have a suggestion in the record already that the the board in that event this wasn't even a district court escalation this was the board reviewing something that had been escalated past the a l j level which is where the hearing happens where the oral testimony is taken and all of those things are put in the court perhaps with a nice like docket might take that approach but the district court also would be well within its discretion to look at this administrative appeal which is essentially what it would be look at the file attached to it and say i cannot review this decision without adequate administrative records to to to support it i'm going to remember all the way back to the beginning of the line in the starts all over again and that's one question about this is this process the e scalation alternative it applies to either party no my understanding is that it applies to it permits a hospital to escalate on the hospital's request there are circumstances where for example the department of appeals or you can review that request and either answer the appeal within a specified time frame or permit it to go forward but i'm not familiar with the situation and nor i think has imply a suggested in her desperation that you could have a situation where the agency automatically escalates an appeal it's really at the hospital's discretionary the way that's written it's to talk about the party but that as it's been understood the party only refers to i think is it as it's been understood in as certainly hasn't been put into practice that the party is the aggrieved party the party seeking reimbursement which would be the hospital of the provider but but couldn't have couldn't work in such a situation in which the hospital actually prevailed at one stage and then at the next stage it would be a different party i e the agency that would be the party that was taking the appeal and enough situation the agency could escalate if not i think in that hypothetical situation the agency could escalate but i'm certainly not for mili is that yes there are disadvantages the disadvantages to escalating because you don't get the same procedural opportunities that as you have pointed out before you would get the face to face hearing more robust opportunity introduce evidence but that's just that's and when congress put these deadlines into effect in two thousand i i cannot imagine that congress thought that it would resolve the problem that was presented then which was a l j appeals w timeline that were not being resolved within even a year year and a half that congress thought that he could resolve that problem by putting in place a problem that would essentially put these hospitals into an endless loop only on the condition that they could get out of the loop clear so it's not it wouldn't be an empty exercise there would be some advantage you're right that there's going to be situations in which the absence of a robust record is going to be problematic down the line and so we may end up exactly back where we were before but at least it'll have some possibility of advancement i think that what we're talking about is escalating a case past two levels of review that the real sticking point here in the process is the a l j level which is that third level administrative review that's the level that supposed to take place and ninety days and it takes right now upwards of about seven hundred eighty if you skip that the review and you skip the departmental appeals court level and you go all the way up to the district court the district court is looking at a record that doesn't have any of the in disha of an appellate and administrative record attached to it precisely for the reason that you pointed out which is that the hospital has now been forced to forgo all of those other administrator protections that congress gave it in order just to jump the line and go to the district court and almost inevitably to be sent back there is no rational reason why district judges would accept eight hundred thousand or more appeals that have been escalated from an early administrative level up either more funding war and the deadlines or cut back on the iraq process those are those are three obvious options for congress but true judge have the knowledge that if we were presented with a situation where hospitals flooded district judges with hundreds of thousands of claims presumably there would be complaints to congress but but that the fact that that happened and then there might be a complaint to congress that there might be an additional rights to this they could supply doesn't  davis i do think this is a significant dispute between the parties is what what does that or else look like it's obvious to everybody that the secretary is violating her statutory deadlines it's equally obvious that she can't snap into compliance tomorrow so what we would suggest in order to put any teeth into a mandamus order is that the district court grant mandamus require the secretary essentially to to take all reasonable steps to come into compliance and ask the secretary to file status reports every thirty days showing some progress is in the end and this is the consequences if in the end the secretary proves unwilling or unable to make serious inroads into these backlogs i think one option for the district judge would be to declare all of the pending agency appeals resolved in the hospitals favor i understand that sounds radical but we are in a situation where when main damus has been sought before for example by the by the by the p o a former terrorist group in iran maintained this was sought in that case against the secretary because the secretary of state had declined to decide one way or another how i think the hospitals went on these  for for the hospitals that have essentially the highest dollar value highest volume claims which are the claims that the recovery audit contractors the racks tend to focus on the estimates of the of the hospital prevailing on appeal range from  sixty six percent to eighty five percent but the government says it's seventy nine percent as i understood the reason there's competition on this your brief says based on some self reporting i think that the rate is somewhere north of sixty six percent i thought that there's back direct conflict because the government says actually based on its information it's seven to nine percent now that i think of just one of us and there's some there's some selective slicing of data going on i think that the government is aggregating every single claim from every possible provider a waiting for the rock claims alone we say and everything are about one point eight billion dollars so what the government says it's refit page and i know we can obviously don't have this but just get your characterization of it in twenty twelve only seventy percent of claims identified by audit contractors right but but it's a subset in terms of numbers so if you look at all that claims that you don't dispute the point that it's seventy nine percent if you look at the subset that are high dollar coins that you're looking at you'd say that it's much much higher than i would want to understand to make sure before i guarantee  before i for answer that as for remedy i mentioned that in the end if the secretary didn't show significant progress in a period of time one of the options the district judge might have available to him is to direct that all of the pending appeals result in the hospital delisting the organization or declining to delist the organization within a fixed period of time or this court would delist the organization that was the or else in that case so it is possible that the consequences could be significant for the secretary but it exists so that's the that's the consequences part of the remedy part is this that the secretary i think understandably takes a very narrow focus on resources a political to the office of medicare hearings and appeals that a l j level entity and what she says is we only get x million dollars per year and that's not enough for us to do our job the first the two responses i think the first is they get tens of millions of dollars a year to do this job congress has instructed them to resolve a l j appeals of ninety days and it's given them tens of millions of dollars to do it we'd all like more money to do our jobs but i don't think it isn't only answer to say we would like to throw more money at this problem there are conceivably and the government has actually articulated some of these ways to address this problem short of throwing tens of millions more dollars at this for example you'll see in the briefing and in the joint appendix there are references by judge griswold who's the chief a l j to things like a d r things like mass settlements which actually are already occurring things like statistical sampling of hospital claims in order to well i think there are a couple different ways to look at it judge hill you're right that even if right now the secretary pared back the rack program you're quite correct she couldn't eliminate it altogether but even if she pared it back or change the contingencies on which they operate or change some of the other sort of indicia of the program that might stop the incoming claims into the pipeline but you still if you're right would have the claims and paring back the rocks might be a solution but not the only solution what it would do i would tell you is some combination of these things including pairing that the rats including for example changing the regulations and the secretary can do this changing the regulations to state that a final determination which is when interest starts running on a claim a final determination doesn't issue essentially until the final level of appeal this is is pursued and satisfied that would that would alleviate the harm to the hospitals and the hospitals are going to be very clear we're not here complaining of a embarrass statutory violation without any concrete injury attached to it we are quarterly reports suppose suppose that were were to say well we're not there yet but we want quarterly reports with that help i think it would help if the if the quarterly reports had a little bit of if the order requiring reports had a little bit of bite to it and the examples i would use that there are there are two there are situations where this court using its original jurisdiction over an a petition that came straight to it says we're going to retain jurisdiction we're going to require reports every sixty days and at the end of x theory of time we don't see progress or a resolution there will be consequences in those consequences could be the ones that i was discussing earlier that is completely within the purview of the district judge and i think something that is quite fairly soft on this current record because things again are not getting better they're getting worse the the order that i would not want to see is one that just says check in with us every quarter we have seen examples of those there's a case that still i think is pending in this court that was argued in one nine hundred ninety eight was an f a a case where an undue delay challenge was  brought this court denied the challenge but said check in with us every quarter and every quarter since one thousand nine hundred nine the f a a has been filing reports that is not a result we would want to see we would want an order with consequences attached to it but on the on manda for the specific relief that you seek because i take it one prong of mandamus is that you have a clear entitlement to the relief you seek the specific really relief you seek is an order that says that the appeals have to be completed by the statutory time frame and then all the other things we've been then there's the question of practicalities the legal question is you shall come into compliance with your statutory deadlines no more suggesting that these are just generally applicable or these are just aspirational they are deadlines and you are to comply from the practicalities are where the secretary actually has a lot of latitude and money or no money she can find creative ways to deal with the problem if just the interest of your interest to just care less if the court were to decide double or triple escalation we're talking about is an adequate remedy then you would not find that maintain this factor satisfied there would be jurisdiction judge well this group of course has as i think judge have i mentioned didn't go that far he found jurisdiction he granted the motion to dismiss but judgment motion you agree with that we reviewed no yes i would agree with that if they're not for their questions ok thank you procedures no i don't think it would be ok then you're losing something but i just like when i just said not right then well i just want to correct the impression that the record is being built that the level you look at forty review as opposed to the l j which would be to novo review of the determination and i think what's right around it right and that's what you're losing yeah i would have grade but i would say and that's that's significant the stair review could make all requirements they get the opportunity to drop forward up to the next level for you without waiting for a decision i think that the best reading of the statute here is that congress did not intend or write it would be enforceable for mandamus obviously that's would be the unusual case where escalation be needed not an eight hundred thousand claims flooding the district court no doubt your honor and certainly i think everyone was overwhelmed by the fact that there was a twelve favors the discretionary programs over the mandatory deadlines and i don't see how you can do that consistent with our system of separation of powers you have to follow congressional mandates absolutely  that's enough to do about eighty seven thousand planes a year now that the agencies manage to double the efficiency of a day ok but if you adjust the funding for other programs or just to the rack processes the brief for  of suggests that would allow you to meet the deadlines that were to come before or to come closer to meeting the deadlines is probably more accurate and i don't think that's actually true your honor because the office can't handle the huge number of peoples but the rat process is not mandatory at least to this extent and therefore because it's discretionary to have it to this extent you should cut back on it to comply with the statutory mandates i think that's their theory that statutory mandates trump discretionary decisions of the agency to effectuate its policy goals just a few things about the right program first as your honor recognizes while some of the implementation details are at the secretary's discretion the program itself is a statutory mandate to deter waste fraud and abuse and it's return billions of taxpayer dollars to the medicare trust fund the second thing i'd say about the rack programs the r program is not the only reason that this backlog exists the agency tells me forty six percent of the pending appeals or on our rack cases but between two thousand and ninety two thousand and fourteen is drug senate there w understand to what extent iraqi people succeed and do they not succeed and so on that question for you to curtail the rack program is it true that you'd be curtailing a program in which you're saving billions of dollars which congress apparently wanted to have happen and you're willing ninety there's actually a high rate of overturning rights of a table they have a sixty six percent reversal rate i don't have numbers i don't think the agency has numbers that are broken out perfectly with math on so what they have i can tell you at the third level for you overall and this is both rac and not the overall rate at which providers prevail was forty three percent so now they have asked their members for a particular subset of planes i don't know exactly how that provide but from the agency's perspective from the government's perspective within or is trying to make sure that this program that congress mandated agency to implement in order success has successfully returned many billions the problem is that that the degree to which that program is pursued by us is within a church as this discretion congress hasn't mandated any particular level of force meant by contrast on the deadlines congress is given no flexibility and usually this is statutory mandates and prohibitions and deadlines trump the scrushy unary agency acknowledgments or decision to say how can we meet this statutory minute you may think the mandate for the ninety days is is not that big a deal and i'm not a tribune that's you but that's but but congress put it in  there as an absolute so we have to comply with that and one of the most important things any executive branch lawyer has to do is say the first thing we have to do is comply with all the statutory minutes and after that and prohibitions after that we can figure out how to exercise her discretion i that doesn't happen i'm not an unlikely that if the congress these days suppose it doesn't pass that and we deny we affirm the district court and then come back next year position and i understand this premise is that we can't think or with the rock process we can only focus on the staffing and funding for the decision making process so now accurate understand what you're saying i to identify a ministerial act that has been withheld and how compliance with that and that's comply with the deadlines and the question then is what can you do to comply with the deadlines you're saying it's impossible or near impossible and on that you're saying lack of staffing laughing lack of funding but they're saying well you could also team here with the rock process in order to comply with the deadlines is that something you're disagreeing with so obviously the secretary has some discretion to change of iraq program operates i don't think first of all i think it's important to keep in mind that while that would affect sort of a pipeline it he says eating further into the backlog to the extent that the what about for the future cases in your answer to a different question on the future cases is teetering with the rock process an appropriate or not an appropriate part of how you could comply with this mandate i don't think so your honor again i  i'm sixty five and seventy one the supreme court specifically talks about statutory deadlines as being the exact kind of thing that is appropriate for this kind of compelled agency action by a court as distinguished from the situation the position of trying to judge how much is enough was right now and that meeting the deadline this is an important point for me is that all or nothing another words state it if adjustments to the rock program will really help but not get you all the problem with the question is it proceeds from the assumption that there would sort of be a useful way for the court to be able to evaluate whether the right balance even struck in reforming the rac program and i just don't think there's enough legal  the secretary to make clear so congress completely understands that if it doesn't provide the funds that are in this statute that the court might cut back might order the secretary to comply the rack program is totally discretionary this would tell us whether congress how much congress cares about that program the leader fun if you know if money the process to meet the the deadlines where they won't but they'll know the consequences deadlines or they could let the rat program be scaled back they would have to do something like that or know that a court mandamus was going to fall at some point in the near future somewhere they can county and that was my this court between complying with the statutory deadline and caroling carrying out a statutory program to its fullest extent the deadline wins every time and in the five years since this backlog has been growing and growing congress has had multiple opportunit to change the deadline if it wanted to and it has not so we can take from that not we don't need to define congress's intent about the forcefulness with which it wanted the rock program administered we know from the maintenance of the deadlines that congress  d the deadlines maintained i also don't think it's an answer to view this this problem as being susceptible only to a singular solution settle everything fix the racks of the entire problem will go away this i think is a situation where if the secretary is compelled to come into compliance with the deadlines she can do a number of things she can take her with the racks as you say she can settle some more cases she can put some more cases into  she might be able to hire some more a l g she might be able to train the to do their jobs even more quickly and more uniformly which is something that she's been working on as well all of those fixes not in the similar but in the normal would go towards all thing this plain statutory violation so if this court as it's suggesting declines a great many nameless now we would urge it to put in place some kind of an order requiring status reports and yes judge haydel i do think that when there is a court order congress listens to all of that but can't quite still meet the deadlines but can do a lot better how do we analyze that in this context i think if if we were to come in in six months and the statutory deadlines were still being violated but only by a matter of days or a few weeks then i think that the calculus changes in two respects first the harm to the hospitals are obviously significantly nearly rated where it's ninety days versus one hundred ten there's a violation but it may not be agree just enough for maintaining mr issue but at least then we would know that the secretary is doing everything that she is capable of and creatively thinking of to resolve the problem and one other question i want to make sure i understand the factual details of how does the interest work if you prevail somewhere down the road you know the administrative process so the interest works in this way the interest begins running at essentially the midpoint in the appeals process of our member correctly the interest on it and that goes both ways it goes both for the hospital of the hospital ends up losing and for the government the problem is with these hospitals mini of which are nonprofit it is not a financially rational choice for them to essentially hold back the money we're declined to have it recouped in the in the hopes of the risk that they might ultimately prevail so the hospital is going to pay the money to the government early every time there are questions ok thank you thank you