on the docket today and call the first case number eighteen three zero nine two five d and g holdings versus h r mr shep r please the court and the district court in this case erred in two primary respects the first is that the district court believed that the issue that presented that was presented blow was quote a kin to an initial determination which is a term of art under the medicare program that indicates that it's an appealable issue and has to go through the administrative process the second error the key point that the court got wrong is that the court below believed that her jurisdiction was limited in such an appeal to only those issues that were actually decided by the medicare appeals council so if you read the court's opinion below she makes statements such as these quote the court finds it illogical that it would be asked to review a determination that does not appear to have been before the appeals council and quote next quote the agency has not been given an opportunity to review this decision and correct the alleged errors next quote even if not classified as an initial determination the court is not convinced that the issue has been exhausted and finds d and g s reliance on the illinois counsel unavailing as applied in this case so the court is laboring under the mistaken belief that the only jurisdiction to review on an appeal from a medicare overpayment case are those actually decided as part of the administrative record we know from illinois counsel that that is absolutely incorrect  we made the same argument below that the nursing homes made in illinois counsel in illinois counsel the nursing homes were not in is going to position as us in this case i have a final determination from the secretary overturning the the overpayment was in illinois counsel that was not the case they jumped the gun and filed suit in federal court without first obtaining a final determination from the secretary they attempted to justify that jumping of the gun by arguing to the court that there were certain regulations that would not permit issues in the case to be decided as part of the administrative appeal process and therefore they should be able to go straight to the court supreme court came back and said no it's the action the underlying action has to be funneled through the appeal process not each and every individual issue and once that action has been so funneled then the district court has jurisdiction in the supreme court in illinois counsel went went far enough to describe the contours of that jurisdiction and the contours include  the ability to take up and to consider both constitutional or statutory issues that the that the administrative panel or or or mechanism was unable or or didn't have the capacity to decide and also importantly the ability to make it in to make a record to to accept to to hear evidence and making a factual record if necessary to decide the issue  presented the issue in this case that was presented is very simple we won by a by final decision of the medicare appeals council which said that we reverse the over payment decision the secretary thereafter was required to repay recoup fines with interest they have not done so the same day that they and i understand this in terms of somewhere here on dismissal for lack of subject stage that's right in the relevant statute is four of five g b correct so it's a hunk of it's a long statute got it here in very small print but  but the statute the relevant part of which is any individual after of any final decision by the commission so security made after hearing two if he was a party irrespective the amount of controversy it may obtain a review of such a decision by a civil action commenced within sixty days after the mailing letter to that's the statute to yours that you sued in the district court under threat of the source of the jurisdiction wrecked my question is are you were you seeking to obtain a review of the decision of the kill because i thought you i understood you to say because it was correct yes but that's the unfortunately congress has set up a quick convoluted system minutely so but this is the correct mechanism for example my complaint alleges a constitutional violation of the fifth amendment their keeping of our funds and not repaying them is a is a problem under the fifth amendment so let's that that was the only argument i was making a literal reading of four o five would say well you're not really seeking a a review of the decision in fact counsel you agree with the decision that's true but the supreme court has explained that once you exhaust the administrative remedy the and that's really the substance of the issue before this court once you funnel and exhaust and you obtain a final decision from the secretary the supreme court has outlined for us it's you're not going to find it in the statute or in the regulations are going to have to go to the supreme court interpretation and supreme court said in only counsel that once that underlying action makes it all the way through the multi year process which is taking four five six years now once you get there ok now the court has jurisdiction to consider these collateral issues that were not appropriately considered or couldn't be considered during a ministry of appeal process so your honor is correct if you read the statute it seems to say that i would but i want you to review the opinion that i agree with where i one hundred percent below but we know from illinois counsel that jurisdiction is not so limited and that's why i said at the beginning that it's very important that only counsel the supreme court said that the court not only can consider matters not decided as part of the ministry process but also has the authority to develop it in a factual record on appeal so that they're not just sitting as this court might say that only to he cases on only the issues and i'm not talking about a medicare case now but only you know you typically in the fifth circuit don't create a room you don't typically take evidence and create room record this is different the district court jester sitting is an appeal court but they have the jurisdiction to consider those issues that were not decided or couldn't be decided during the mystery process where they could have jurisdiction to do that the whole question i think to echo what judge duncan was asking just a second ago is do they have it under four or five g because the way the statute books certain kinds of claims get channeled through the administrative reprocessed as you put in the brief and i think our court has said it before the the byzantine you know five level process which is somewhat amazing that that your client was able to navigate through successfully whether  in process some claims go through those right and have to go through those and when you get to the end and you're seeking review of the way those claims were adjudicated then that's a four or five g question but there's a whole another line of cases and in this is my principal question to you is why are you in the second line of cases california in those cases on the second line that say your claim isn't actually a four o five g clean right you're not actually seeking or you know the initial determination with respect to benefits on your part a and so part b and everything else in your question the answer is respectfully i believe i am under four or five the i think i have to be on the floor and there's case law out there that indicates that  i'm wrong i believe you have to read the medicare statute with the gloss provided by the supreme court and i understand what you're saying that if you look strictly at the statute and i and my asking the court to change the decision by the medicare process of course not but i am certainly asking for the court to exercise its jurisdiction which is triggered by the exhaustion by the final determination by the medicare bills council so i understand how the medicare peels council final decision is a predicate for mandamus i guess what would happen if if the court disagrees with you that this is a four or five g i notice that the judgment below is a dismissal without prejudice so i would assume that you would be able to go back to the district court filing mandamus action in say here is the final determination that the overpayment was on the recruitment was on the awful  clearly i believe in this case the secretary had a clear has a clear duty it's it's not even disputed by the secretary that they made no effort to pay interest in this case so even if you we dispute how much principle is which we certainly they admit they haven't paid any interest which is clearly required by the statute so that the i do believe that mandamus jurisdiction i could have done what what dr  case where he had a he had slightly different facts because in his case he had a favorable determination by the secretary and in subsequent claims he was saying that the secretary wasn't following the decision here the overpayment is tied directly to the underlying action that's up on appeal in other words books for this underlying action that i've taken through four or five steps of the appeal process  but for that the overpayments tied to that in other words and i f you read the facts i mean i was in the district court twice seeking injunctive relief because of these recoupment so they're there they're tied to the underlying the underlying overpayment determination that was reversed so that's why i believe i have to go under four or five g if i'm wrong then i think i have mandamus jurisdiction but there's a supreme court case that says you don't that to be made on that point the secretary is going to try to say this is this written and the fact they do say unbelievably that this is somehow a new claim by d n c it's clearly not doing you should just go back through what they want to characterize it as a as a claim for additional medicare payments so that i have to go back through because that would be an initial the in which it's clearly not there's no new claim here the secretary's duty to repay with interest is triggered by the statute was triggered by the medicare appeals is recouped was recouped from you it was not me litigated was there were factual determination made about are the facts in the record i don't the the amount was not presented during that process right so the issue really that was being adjudicated if you will by the q i see was the legitimacy of that overpayment determination period the recoupment were sort of collateral and in fact the reason why the district were gave me initially a an injunctive order was because it was a collateral issue not really related to the to the issue on appeal so the answer is no you're not going to go back and of the q i see decision and say well the secretary determined how much was recoup because that wasn't the issue but the way i read what happened was huge you said including a fifteen minute clean you took whatever you took call it x but i think all of it is illegal so give it all station where should be how should they have sued but what would have been the appropriate jurisdictional basis to get back your honor that the crux of this matter is we're not really sure and i think the district court did the best that they could to try to figure this out because the confusing part of this case is that this case is not what it purports to be so the plain is if you look at their complaint record that number six filed suit under four or five g and specifically thirteen for forty two u s c thirty nine five and basically saying that this is a review of a final agency decision and clearly this is not the plaintiff does not challenge any part of the might disagree with that i should the united states disagrees with that but i'm confused from the position that in adopting the red brief and i'm hoping you can answer this question for me today suppose they're owed nine million dollars the united states pays them one point eight million dollars and everyone agrees that the recruitment was illegal how is the appellant in this case supposed to get the seven point two delta and what is the point what is the way to sue to get that well there are the possibly there could be a couple of options and that's the confusing part of this because the district court and we're trying to figure that out here when it is not in the complaint so for example it's either and a calculation error or it's something else let's just assume to take my hypothetical that maybe if we don't know when to use this case to assume not d m g holdings a different company it's undisputed that the seven point two million dollars is owed by the united states to the medicare provider the medicare provider has exhausted under four or five g for years every claim under the sun got all the way down in the medicare appeals council agrees with the provider how does the provider go get the money there has to be an answer you would agree with me there has to be a way to get the seven hundred of the facts that you've presented if it was undisputed that that particular amount was old for example from the final agency decision then certainly possibly mandamus but we don't have that situation here for a couple of reasons number one even the plainest expert which they submitted in response to the government's motion to dismiss said it's either this four point three billion and then if you add interest four point nine million or it's one hundred thousand level one hundred thousand and if you add interest one point eight or one point nine million if you if you look at these claims that you see here that have a cold on them that says four in balance and so if those were coote in our part of this recoupment then it would be the four point you know nine million with interest we don't know that  is not before the court and interestingly you know the plaintiffs makes the the argument that the government has not has admitted that interest on has not been paid while the plane it has not shown that interest is owed because specifically they mentioned this the statute that deals with you know the payment and payment with interest but there's a specific regulation forty two c a for follow for a five point three seven eight j three which is this specifically talks about the calculation of when you're you're repaying and interest is only paid on the principle so there is no information because this was not brought before the administrative body of what did what payments were recouped what was the amount recouped and whether or not any of the recruitment secretary and through the contractor was responsible for calculating the amount of the recruitment and repaying that which is what they did and that was the affidavit that we attached to our motion to dismiss and as a matter of fact they said you know we paid a little over two million actually only one point nine million was owed in a way that affidavit showed the work like how we calculated one point eight billion no it does not it does not so the number just kind of comes is there anywhere in the record where we could find where one we need comes from no because it was not before the council and that's the problem here that we would not homos before the council on to that remanded back in an elevated back to the council when so you would clearly agree that what was before the appeals council was give me all the money that you have recouped i mean that i have of the sentence in here somewhere where they are the appeals council specifically addresses the fifth amendment claim that the appellant is raised in this case and says appellant argues quote extensively that every penny recouped was  moment so the government the united states the appeals council medicare everyone the secretary everyone is on notice and has been extensively according to the appeals council's own words advised that their clean is give me every single penny that you recouped that's the coin well you want to respect respectfully it would have to be claims that were cooked pursuant to that overpayment so there are a lot of claims especially when you know you have a provider that is billing millions of dollars to medicare there are a lot of claims and some claims may be denied for some other reason some claims may have been with coote and so unfortunately for us you know when you're the district court was trying to determine what exactly did we have here because what we do know is that it was not you know the plaintiff is saying that this is not an initial determination and unfortunately for the plaintiff that is the path to digital review under four or five  it's either an initial determination or it is it is either we're viewable or it isn't and specifically congress after the illinois counsel decision that was in february of two thousand in december of two thousand congress specifically changed thirty advocating at this point in the argument that after you get a determination that says we had no lawful basis to recoup one penny from you but the rimini is you then have to go back to the beginning and exhaust what the number of this is this is not been brought before the end so we don't really know what we have and you can see that by the district court's decision because she says this appears to be most like almost a kin to an initial determination but even if it isn't and this is what illinois council says in a council doesn't say that if you have a statutory or a constitutional challenge that you don't have to funnel it through the administrative process it says that the court can review those things if they're challenge they have to be brought up with the underlying administrative claim but if there are things that the secretary care not review then the it can be subsequently reviewed by the district court that is what the post illinois counsel when the government refund of the one point eight known him or was there any transmetal documentation explaining why the government was refunding that money not not to my knowledge your honor i believe that they just received a check i'm not aware of any transmittal document that laid out if you're asking what was what resume or star or why i'm not aware is there no documentation in the file of the person who sent the who refunded the money you're either saying we don't know we don't know that seems absurd that the government is either taking too much money from someone and not knowing why or refunding money and not not being in a position to explain to us that's  totally inexcusable well your honor i go back to what is the what is the the basis for this case and the plane it has alleged jurisdiction and a four five g and if you look at the plane as complaint the complaint is that united states did not arborist refusing the secretary excuse me was refusing to pay the recruitment now certainly within the week that the pla style that lawsuit they became aware that the payment had been made by the secretary and at no time did the plaintiffs ever go back and amend their complaint to bring in any of the allegations that we're talking about complaint as it stands and the complaint that the united states responded to was that the recruitment had not been paid and that the secretary was refusing to recoup there has never been any commitment of the basic complaint done that and said we need to know more i'm for a five g does provide for remained it a ring man can be done if the sec if the court determines that there is information missing if there is new information that was not available at the time and are they can remain and to have the the council provide that lack of information that missing information that was was perhaps not available  possibly you know and i think it's really hard to say because again we're not really sure what we're dealing with we're not really sure if we're dealing with a miscalculation or if that the secretar of the commissioner so security made for good cause shown before the commissioner files the commissioners answer remand the case to the commissioner for further action by the judge but that's another basis right you know and that would seem to fit here at not i can't say as i stand here whether or not the secretary would oppose that but as i said the so there are three bases for the remaining one as you mentioned i think that's maybe outline number four in that statu that the that the set the secretary the commissioner can see from in before it's answer so we're we're past that ok so then the other two is a one as i mentioned for the lack of information and number two to fix a mistake so it's possible that that that could be done and that may sit here but the bottom line is based upon as i said this complaint there is no jurisdiction and it is incumbent upon the plaintiff to provide a basis for jurisdiction the united states cannot be sued say as you know it consents to be sued and congress specifically acted in december of two thousand by  survive six years of litigating getting the money back got to the appeals council and the appeals council says you're right it would and then then then then the initial determination is the one point eight so start over again if you don't like one point eight but look as i said your overpayment the recruitment i keep saying i'm sorry the recruitment was unlawful finally it's finally determined that is a final agency action no doubt about it right could be with other disagree slightly oh i would say that what the what the house will determine and what has become the final story directs that they couldn't they couldn't the evidence did not support the calculation of that figure they couldn't determine what the calculation would be for the overpayment based upon the record that was before the council so the council did not ask that the plaintiff alleges determine that the recruitment was unlawful that that would not be accurate we've talked a lot about the secretary in discretion and regulations and complicated statutes i'm hoping you can give me a  around this question if there was a determination by the secretary that the overpayment was unlawful entry the recruitment was unlawful and if there was evidence that the procurement was eight million dollars would the secretary have legal discretion not to pay the eight million repaving if that was a decision i'm sorry if what was the decision if the decision was if you're saying if there was a final agency decision that there was a recruitment which we don't have a decision here that says that decision that recoupment was unlawful and that recoupment was specifically eight point whatever million dollars then the risk they secretary would be responsible for repaying that recoupment if there was a determination that the recruitment so providers as part of their their bargain to be providers and to receive payments under medicare they they agree that almost one at a time they agree that they  that the agency may go back and review those claims and sometimes that's you know that's a program integrity issue because we're losing a lot of money for claims that are improperly paid and so they agree that the secretary may go back in contractors and review those claims and if claims are determined not to be payable then the secretary has a duty to recoup those monies and so that's what we're talking about and so that's what was done in this case because it appeared to be that there were that's why we can agree i guess that yes there has been a there's a problem right obviously there's a problem you get about one point two million we can also sort of be in the dark about how much was recouped from because it wasn't it wasn't presented in the administrative process and again illinois council doesn't say you get to bring these other claims if you think they're constitutionally a challenge which we don't have any briefing either in the district court or before this court of any constitutional challenge you still have to f other benefits that were not otherwise payable you know there has been no word view of whether or not those claims were payable and so that's why we're in we're here what are we talking about because of the way this was played and what we have before us is not what the the plaintiff purports it to be and unfortunately there was no jurisdiction for this complaint which is why the court currently dismissed it thank you for your otherwise but the district waiting we didn't get that far as the district courts of the should have jurisdiction so i would have walked into court and said judge but of course the government gets credit for the one point eight they've already paid we're not asking them to pay that again there's no reason to go back and then the complaint and the absolutely they do have proof they are if i can get a hearing one thing one of i want to emphasize is that this is not an initial determination that we're dealing with despite the secretary's attempt to characterize this as a claim for new payments sation or terminations of a work of a collection action i e recoupment that's not an initial determination subject to ministry of appeal so if i didn't have if i don't have jurisdiction i cannot go back which is what the government wants me to do they  a five year process on the issue of whether the governments pay me the right amount or not and i agree with that that's ridiculous but it but i can't do that even if even if the you said that was the law because the secretary's own regulations say that i can't do that it's not an the taking of of additional evidence i don't know that i'm i'm glad you asked the question on and i'm i'm going to beg the court not to put it in its ruling that that the court consider that option in the reason is as you well know to this case involved to escalations ok so what they what the secretary will do if the case is remanded is send it back for they have a hearing which will take another four or five or six years and then some day maybe my clients will get their day in court so yes there's a mechanism for remained but practically speaking the system is broken and if this is that's why i'm so thankful for illinois council and the supreme court having said that the district court has to develop its own record because that's record correct and that's what we want we want the district court to address this issue if you send it back to the secretary will be in another black hole for another six or seven years and then when i'm old  and gray may retire and most of you have been on the bench for another twenty five years i'll be back in front of you saying please don't send it back to the secretary so i want to put stock what judge clement asked and that is when we got the one point eight million dollars payment there was no accounting there was it typically when you get a payment from medicare you get an explicit explanation of benefits that says what beneficiaries being reimbursed for and  transfer we don't even know we haven't paid and until several days later i filed the complaint i didn't know that the payment was made until the following week and i said oh well we got this money and we don't know what it's for my me what the district   but in my last twenty eight seconds i wanted just one additional thing that the kind of struck me as odd in that the government with respect to interest the recruitments occurred if you look at