thank you your honor may please the court daniel tenney for the federal government i'd like to reserve five minutes for a rebuttal please all right i'd like to start with appellate jurisdiction the the district where did issue a final judgment here there was an order that resolved the legal dispute and and the district court held out the possibility that the plaintiff could request additional injunctive relief if it were wanted to go to trial and supply more evidence the plaintiff declined that opportunity and so the the case was ended at that point so the judgment is final there's nothing left for the district court to do there's no issues that remain open well let's explore that a little bit further because i think it's an understatement at least for me that this record is very issues left to remain and there was a trial date schedule right well what the court said was that on the record before the court at the time they didn't think injunctive relief was appropriate it didn't think plaintiff and established in title meant to relief but that played different requested in advance of that hearing or or in the course of that hearing that if on that if the court didn't give an injunctive relief i wanted an opportunity to put forward more facts to get that clear to me that the court thought that there were more issues the plaintiff had made that request in the court said you know i don't have on this record enough to justify an injunction if you think you need an injunction and you can put more facts forward i'm going to give you one last opportunity as my understanding order asking about appellate jurisdiction are cases where one of the other parties or both had reserved issues and said depending how the appeal comes out we might we revisit these or there's a dismissal without prejudice something like that in order to expedite the appeal but still we have something open at the district court level that's not what's happening here and i've discussed this with plaintiff's counsel and obviously you can ask him to when he gets up here but they don't regard themselves as having preserved a right to to seek more relief to do more in the district court in this case  your honor it doesn't it doesn't use either formulation either saying it's with prejudice or saying we reserve these claims for later it the stipulation just says you know the court should enter final judgment on the terms whatever that i am with that says but if you look behind that at the prior orders of the district court there are a lot of issues that have been there a number of issues that were never resolved in the district court and unless either party is willing to say withdraw them with prejudice the parties didn't understand there to be anything more for the district court to do you would enter a fifty four dollars b order if you said we want to take this part of the case up on appeal but there's more we're going to do in the district court the part parties may quite quite clear there was nothing more that the parties intended to do in the district court and i think to go back to the st part of the question i'm not sure what issues remain to be resolved the only thing the district court identified was it said at this time i'm denying your request for injunctive relief and you know we can talk about the merits of that later but that at this time i'm denying your request for injunctive relief but you know you have said that you might be able to put forward more evidence in order to convince me that you were entitled to injunctive relief than the plaintiff entered the stipulation which said no we're going to go with what the court has already done and you can go ahead and enter judgment now you know there's no document that says and the  this is with prejudice but the court had already said i'm not giving you injunctive relief on the record you've got at this time right and subject to if you want to submit something further and then they didn't submit anything further so that's the end of it i mean that if if if they had said we don't have anything further your honor and the court had said ok then my decision is final no injunctive relief then then the case would be clear and we submit that what actually happened is not really materially different from that other than it was an agreement of the parties rather than the plaint that certainly is a judgment of the judgment of something and i understand they are going to you're making but we're looking at the stipulation in the exhibit a and i'm not saying it doesn't say what you're saying but i'm not sure it does either i guess is what i'm saying to work if you can walk us through the stipulation the judgment where it makes the point you make if you said there's a final judgment we're done there's nothing more to be decided i do see us to be lation paragraph six this with a vacation of a trial no issues would remain for resolution by this court is that right is that the language you want to hang your going on yes your honor and and i think that language in the context in which that meant in the context of the the reason the stipulation was entered into at the into the  place the judge as i said had the district court it held out one thing that the court said there's one more thing that i could do if the plaintiff had said ahead of time that the plaintiff wanted an opportunity to prove to  an injunction if if you didn't think it was warranted on this record and i'm going to honor that request then the parties come back and say no we're vacating the trial meaning we're abandoning the opportunity that the court gave us and with that done there are no issues remain to be resolved please enter judgment and our view and i believe plaintiff you to is that that makes it a final judgment because there's nothing more for the court to do if you you move for summary judgment thing that sega was asking for and then it abandoned it what does this language mean the stipulation the parties have separately entered into tolling agreement dressing the treatment of demands for payment by defendants to seek a so that those those demands for payment were within the scope of the lawsuit that that got dismissed but it might be revived later in a separate lawsuit is that what the parties were contemplating with that like i don't believe so your honor i don't i don't think that refers to claims that were part of this lawsuit i think as as a stipulation between the parties as opposed to something they were asking the court to do the parties were just noting that the tolling agreement remained in effect so that there are a lot of cases that are waiting in the wings here that might be in the administrative process that actually the you know the government has to stop processing those awaiting the outcome of these issues those are cases things that were presented to the district court there were three claims that were still live before the district court and the district court ruled on those three claims there are other claims that they might have in the administrative process be held in abeyance but those are not claims that were part of this litigation ever well and counsel you just didn't want to go through with anymore proceedings in front of the district court but that doesn't without actually dismissing the claims i don't see how you have a final order well your honor ther isn't a claim for you know there are substantive claims have been resolved and i hope to get to the merits of those but there but the only thing that was i mean one thing that's been identified that i'm aware of that was still unresolved was the this possibility that even though the court at the time said they couldn't get injunctive relief that potentially with further factual development they would be entitled to that relief and then they said it turns out we don't want to do that and we we'd there are no more issues to be resolved we're not asking for anything further and please enter judgment and i mean if the court sends it back then they can dismiss it with prejudice more explicitly i'm not sure exactly what the it is that they're dismissing with prejudice at this point but obviously the parties could do that and then we would be right back here but we submit that that's not necessary at this time to write about that i have another question for you this is procedure so this is their vote a very substantive issues here and you make the point that since this case was started congress has passed a new law for providing for administrative agency review of claims of this nature is that correct that in view of the you know disputes about what's in the record in the course of the background issue of preemption and always the same if you're a colleague you would be interested in me the whatever remains in this case as part of the th circuit mediation program rather than continue the litigation because future disputes of this nature or going to be dealt with administratively and it would seem to me that whatever is left in the record in dispute least there is some argument there is some that might be best dealt with with the mediation rather than going back in front of the district judge and having were arguments or would you we will even talk to your colleagues and department of justice and consider that well i mean we i can't speak to the details of the mediation under this court's rules there was a mediation in this case under this court's mediation program who was already yes your honor and then it was ultimately released for mediation so i'm not sure that we want to go back there just to take a step back from your question i think the fact that circumstances have changed on the ground is part of our argument for why the declaratory relief was particularly appropriate on the specifics of how the interaction between sega and the government works with respect to individual disputes but as to the core threshold legal claims that sega has which is basically that they're not required to pay at all ever under the medicare secondary payer provisions for a number of reasons those are things that were resolved by the district court in the government's favor so you have it here as to its position we adhere to our position and we submit that that dispute is right for this court to do to kate and we don't need more proceedings in the district court we don't need mediation for that what we need is a real resolution  held there was preemption so you think on the merits that that finalizes the case in your favor when any disputed issue was is that correct on that issue your honor i mean there were there were the distiller basically two pieces to this case there was secret claim that that they should never have to pay either because their statute exempted them or because there was a timing provision that the state timing provision that the government didn't comply with  and the district court resolved all those issues in our favor is it your position that the judge that's the court's decision when preemption settles the case as to will see disclaims against the government against the federal government no your honor because there was also the separate there were the three individual claims and the argument that there was this practice we submit there the district court ultimately recognized there wasn't such a practice but there was that claim too but that claim too was resolved by the district court and that's why we're a medicare need to comply with the clean filing requirements right those were you want us to affirm correct those rulings and you want to reverse the clarity or relief with regard to the  billing practices procedures correct that's what we're asking for we say and that is the entire case the those two issues there's the there's there's broad claims and then there's r and then there's the declaratory relief on the a worker's compensation plan is it well i there's a few ways to look at this i mean the regulations talk about entities that assume legal liability the i mean the regulations also talk about arrange of one or more entities to pay workers comp i mean the statute and the regulations together are talking about a worker's compensation plan as a primary plan what happens is in practice isn't workers compensation insurers  oh money to individual beneficiaries if they can't satisfy those obligations than sega takes over those obligations and so see go could be construed as part of the worker's compensation plan it could be construed as its own worker's compensation plan but just to be clear what congress was doing here and its in its reiterated over and over as the as the th circuit in baxter recognized is when medicare when there's a medicare beneficiary who also is eligible for some other coverage the medicare secondary payer provisions are designed to ensure that that other entity pays and what she goes saying here is even though there's no dispute that siga has an ongoing responsibility to pay medical claims of these particular beneficiaries and what's he saying is just because medicare would also have an obligation then siga doesn't have to pay anymore and medicare supposed to pay instead that's the opposite of what congress was trying to do and in terms of the specific language i mean the st circuit in the rhode island insolvency insurance fund now resolved this same issue because what they were saying there is we're not really the insurance listen that case i mean they didn't say much but what base the argument they were addressing was a the same argument seeger's raising here which is we're not really the insurance policy we don't there are things that insurance companies do that we don't do that's what seekers are doing that's what was argued in the st circuit case and that's not what matters under the statute in the regulations what matters is are you are you assuming legal liability for workers compensation benefits and that is exactly what secret does and if if that were if it weren't the case that this counted then if an insurance company said ok we're going to take on these responsibilities but then under certain conditions we're going to transfer them to somebody else and when we transfer them to somebody else that other entity doesn't count as a worker's compensation plan and therefore medicare will become a primary payer even though the structure of it is the same they're still another entity paying worker's compensation benefits under a claim of legal right to the same medicare beneficiaries there is no indication that congress would have intended that that medicare would be primary just because they've arranged it the way that the person is going to be paid in this different way and that's essentially seeger's argument here they're saying because the person is not being paid by the entity that they contracted with but there is an arrangement that under circumstances that in circumstances they're paid by somebody else that doesn't count anymore but that's exactly contrary to the regulation because the regulators says if there's an arrangement by one or more entities to plan means any arrangement oral or written by one or more entities to provide health benefits or medical care or assume legal liability for injury or illness there is no way that siga does not qualify under that definition your hon court my name is stephen whitmore and counsel for the california insurance guaranty association i'd like to start with the jurisdictional question that was addressed earlier i will agree with counsel that all the issues at the lower court have been resolved there was one issue that remained open and it was the injunction with the district court said is that that injunction is potentially unlikely to be granted because there was no evidence that the government wouldn't actually ultimately comply with the declaratory judgment so the judge says if you want to go forward to a trial to prove that the government's not going to appeal comply with my order we can do that at that time sega would do that claim the stipulation was entered into and we moved to this court now just to be clear sega intends to withdraw any of the injunctive relief with prejudice if it wasn't clear from this record we want to make sure that's clear now and under this court's rulings both in the evan case in two thousand and twelve and a dan and barry case in one thousand nine hundred and four this court is taking a very pragmatic approach to this question if there is something left at the district court below or even potentially left that's one thing but if it can be clarified even here at this podium that there's nothing left below the parties are in agreement on that then we respectfully submit this course to take the pragmatic approach that was set forth and evan with respect to the merits issues i think the fulcrum question here is whether sega is a primary plan in judging when identified that issue well so let's get to that counsel read the definition of a plan any a rangements i think oral or written to provide health benefits or medical care or sume liability for injury or illness and so as has been briefing counsel raised the rhode island case with the  court decision is in sixty ordinarily important here because what why if he does is if there is a way to look at this issue where there would be no preemption then this court is implored in directed to find that way so as we're looking at whether it is a primary plan or not the question is is it a clear and manifest direction from congress that seek to see the act is intended to be preempted here by the medicare secondary payer act and we respectfully submit that answer that question is a resoundingly no there's the statute at issue the congress enacted statute we're talking about here today is the definition of primary plan and it needs to be a workman's compensation law or plan if this court finds a way to find it seek it does not fall under that umbrella anyway at all than under why if we need to find that now sega is not a workers it is not an insurance company it sells no insurance it is has no policies it makes no profits and it just seems no contractual obligations to insurance to be clear if an employer in this state wanted to go get workers compensation insurance you would go to the labor code and that is where all the explanation of how it works in juxtaposition the sega act is under the insurance code there's no overlap between the workers compensation laws and seekers act in that respect now what counsel has asked is that you look at the word plan in isolation if there's any arrangement at all then coun saying you've got to find in favor of the government but respectfully that's not the way that statutes are supposed to be read with this court is asked to do is read a plan in the context of workers compensation law or plan and for the reasons we've explained siga simply does not fit that definition now judge you brought up the st circuit decision and we agree with you it was a very limited paragraph and what the court did there that the argument that you're presenting today was presented to the st circuit and it rejected that albeit the reasoning was brief it did say that upon the declaration of obligations under the policy on the covered claim so i know you quibble with the word the name but i think in effect this is similar so would we be creating a circuit split if we were to rule for c we respectfully submit it would not be a circuit split because the facts in the st circuit decision are significantly different the st circuit relied exclusively on the word didn't and the fact that the guarantee from there was deemed the ensure if that were the case here we'd be having a different discussion the california statute is substantially different there is no such deemer provision in fact the california statute stand for something very different and provides very limitations on the types of claims that can be paid in the state and to be clear under the siga act siegel is not allowed to pay any claims that are brought by either state or the federal government so under that siga statute the question is does the congress edict and the medicare secondary payer act trump the siga statute is it clearly and definitively preempted and for the reasons we've discussed it's not  the st circuit decision has it been a provision and the court relied exclusively on that hook that just doesn't exist here had the st circuit not had the dreamers who they could have gotten to the same substance we're here talking about today perhaps they didn't to essentially half this court affirmed the preemption analysis and affirmed the the timeliness or whether the government really needed to comply with the claim filing requirements but it seeking a reversal of the district court's declaratory relief and on that order the district court indicated that the court finds it appropriate to issue a limited judicial declaration regarding c m s interpretation of the m s p a century the billing practices so the government would like a reversal of that but on the billing practices the district court thought that there were still factual issues that needed to be resolved and i still don't have a clear understanding on at that point in time the district court thinking that there were still factual issues issues to be resolved by way of a trial and then the party stipulating all of that away what happened to the factual issues that remained at least in the courts my and apparently in the parties minds as well at that time that's an important question with respect to the declaratory judgment the district court below may could there are no additional issues that were needed in the court explained that that issue was clear crisp and complete in what the court said is there's a difference factual issues we would need to know the answer to if we're going to step into the injunction category and the court said we need to address for example proof that the government will not comply going forward basis with my declaratory judgment the court said that was the only factual record that remained open which because i think there's some confusion on this record i'd like to clarify what exactly the district court was saying the government testified in a deposition mr ian frazier who had worked for the government for fifteen years dealing with these issues so he was the right witness to be in the chair and mr fraser said i'm not show that when we're sending out these reimbursement requests there are i'm paraphrasing here x s and os the exes are the parts that fall under the workers compensation policies and the o's are the parts that don't my nomenclature not his but you get the point and what mr fraser said is when we send these out we can't separate these diagnosis codes the x s and the o's we can't separate them it's too difficult we don't know how to so they're put together in the same bucket and sent off the sega c e o said well hold on a nd why are you asking us to pay for ose when it's clear that sega doesn't know the o's and in fact that's like the caldera decision in the th circuit that we cite in our papers if there is something like diabetes and one of the examples or if you saw the  brief they were talking about lice if there's something if somebody goes to a doctor and ask the doctor hey i need some help with the workers compensation injury but while i'm there oh i'd also like some help with lice or diabetes or smoking or whatever that has nothing to do with the workers comp injury then there's two things going on at the doctor's office the x and the o what the district court said is that the government needs to figure out a reasonable way to try to separate out the  unknowns otherwise what's happening here is that the government is billing for the s which are clearly not owed by any primary payer so that this record just said be reasonable don't charge for always when you know and government when you come in and testify and say it's just too difficult i'm not buying that he said come up with a reasonable way to give an example how about how about doing some kind of balancing maybe five thousand and fifty dollars weighing it doesn't have to be perfect  said you have to make some effort to not charge for those and that's all that happen there but i think as is as we explained earlier there are three key issues we talked about two of them we've talked about the primary pay of this entire appeal so each of these issues are independently important the late filed claim issue is something that is really already been addressed by this court this court in california alive put another way if the government never meets the condition precedent to have a claim in the st instance then the summerland principle does not apply now the government is relying almost exclusively on summerland to say that the late filed claim argument is invalid this court issued rulings in bresson in california one explaining why summerlin has no impact on a and the secular case along with precedent california one all stand for the same principle if a valid claim never materializes then summerland doesn't come into play so now that we have a legal principle let's take a step back and apply it to the facts of this case here the government never had a valid claim in the st instance this is not a case in which siga is seeking to extinguish a valid claim we're just telling the court the government never had a valid claim in the st instance how is that siga statute makes clear that if a party the federal government or anyone it can be any party including the federal government wants to assert a claim against a covered claim there is a condition precedent and that is going to the liquidator in the underlying liquidation and timely filing a claim with liquidator once that's done the government's potential claim comes to life now just so i don't step on our preparer argument this is assuming you disagree with us on the primary pair issue because if you do agree with us on primary payor you never get to this issue the whole appeal all three elements go away if you agree with us that sega is not a primary payer but if you disagree then we're going to look at this late file claim issue and respectfully this court has already provided a clear roadmap about how you would or would not apply summerlin and i think this perhaps got overlooked by the government because in the response that they provided to our brief we explained we said look this is a bresson case the government  claim the st instance and their response if they didn't address and in fact what the government did is they addressed the u s supreme court standard in california too but that deals in situations where there are already is a valid claim what we're there's there's a few different ways look at this case because what y the saying is if there is even a sliver any sliver of light that gets us to a position where we don't have to have preemption then that's where we ought to go and importantly this is precisely the kind of case where preemption should not apply because we're dealing with insurance and as this court is well aware insurance is a matter that is typically reserved for the states so the question we have to ask ourselves here why is it that the california legislature is not allowed to come up with a principle in this insurance field and say hey we know that ultimately all of siegel's costs are paid for decision that that that in this state these types of claims any federal government claims should not be paid why is it that that finding or that edict by the california legislature should not be honored here the only reason it would not be honored is if you have to have to find preemption and why it is telling you and telling us here today there's a clear road map here so as you're considering and looking at what primary pair means and what workers compensation plan a lot means the lens through which that should be viewed is simply is there a way any way to see it the way that c is presenting it and there's not only a sliver you could drive a truck through how clear the whole is that that seat is not a primary plan issues that clear but i just think your argument  and we always and i strongly advise that my client every case and i did in this case as well and as mr tenney correctly states the parties went to mediation parties made an effort but it wasn't successful and that's why we're here today and we're respectfully asking that this court resolve the dispute we do believe it's right we have made clear that there's nothing left below that that injunction claim has been dismissed at least not for making clear here intends to be dismissed with prejudice so we respectfully request that this court issue a ruling on the three substantive issues and as we said if you find that seat is not a primary plan go no further if you find that it is you go to point two and if you find that it's a late filed claim then go no further and if you get past one and two for whatever reason this court doesn't agree with seguin twelve then you get to issue three and you find that this judge a very smart focused judge figured out that what was going on not only was sega but medicare's plan saying we don't want to try to figure out how to separate out access for most it's a serious problem why should the federal government be allowed to charge for something that they know that isn't owed so a court saying this your court said we can't do that anymore thank you for your time today we appreciate your consideration of these issues thank you your honor on the primary plan issue st this is fundamentally not a question of whether it's presented or not it's a question of the definition of primary plan the fact that see the happens to be a state entity the point is the question is just whether arrangements of this kind count in the definition of primary planned they clearly do there's a worker's compensation law or plan is the statutory language the regulation defines plan in a way that is natural in keeping with the text and purpose of the statute and clearly encompasses see in terms of the timeliness issue i mean bresson the government one bressant just to be clear and the this court said when there's a federal claim then the state time limit doesn't apply the medicare secondary pet payer statute it's a one of our dependence it sets a primary plan in an entity that receives payment from a primary plan shall reimburse the appropriate for a trust fund for any payment made by the secretary under this title and then it goes on that's a federal right but the federal government has in its sovereign capacity to obtain payment from sega and there is no basis and the question of covered claims that would govern state law rights rights in the insolvency proceedings rights that arise out of state law that's not what this is that's not what it was in bresson that's not what this is finally on the declaratory judgment point the the court recognized that it didn't understand what was going on it said and page thirteen when it decided not to issue an injunction it said that it recognized that it didn't have a complete understanding of critical issues that an injunction would significantly disrupt the administrative process because it would inject the court into future administrative proceedings that was all right and good reason not to issue an injunction but it's also a reason not to  judgment if the court doesn't understand what's going on i see my time is up i just finish my sentence if if the court doesn't understand what's going on if there's going to be a new administrative process now in which these issues can be worked out in which