todd welch welcome all of you i'd like to reserve three minutes for rebuttal with your permission and i hope to be able to use it but if i eat into it a little bit i'll use whatever's  left this case comes to you for dyno of a review based on a dismissal for a lack of subject matter jurisdiction under rule twelve b six the underlying action is one for an injunction  in which blue valley hospital sought to enjoin c m s from terminating its medicare provider contract without due process because the continued participation under that agreement is a property right the due process clause of the constitution requires a pre term anation hearing pre term anation before that right can be terminated let me ask you what it's that this is your ministry to proceed are they the filed and we're waiting we're fine i'm sorry are you say their final yes so you had a hearing before the administrative agency we have not had a hearing now we fly we filed it and there it's it's in the said oh i'm sorry no it has been filed i believe we are set for currently i think we're set for some kind of hearing in june which will be our first appearance before the a and you said in response while no judge you shouldn't dismiss because your pendant constitutional planes that still remain red are but why aren't those also  not final or not even right for you till you run through the administrative process as you could get your relief administrative well i think if you look at footnote ninety  five of the court's opinion the court acknowledges that in this case a retroactive payment of amounts due will not properly remedy blue valley hospital because in effect if we don't get the decision made if we don't get a pre hearing determination the hospital is subject to going out of business and all of those patients will not be treated that is and to to answer your question very succinctly judge the answer to your question is why is this case different this case is different because of mathews versus eldridge and the collateral claim rule which was made in that case and which has been  of a recent case that was decided in two thousand and eighteen in the fifth circuit that is the family rehab versus a czar case in which in a case where there was no pre determination hearing the fifth circuit did exactly what i asked the district court to do and what i'm asking you to do and is that parallel actually on the exhaust of issues well with yes i think it is rehab case family rehab purses ace are two thousand eight hundred case out of the fifth circuit so pretty recent and i think what we really need to keep in mind here is that you know i'm really just trying to get in the door we got kicked out on jurisdiction and the district court kicked us out based on the administrative channeling requirements of section four zero five g which your honor just mentioned  and the matthews versus outreach case basically said that if you have a colorable procedural or constitute constitutional claim which is wholly collateral to the substantive  relief sought at the administrative level in that case the court has jurisdiction they can waive the finality requirement and get to the question of whether or not an injunction is appropriate before you get to a final determination of america's that the government doesn't really challenge that proposition of law they just say this correctly i think in a general way you are collaterally it is it is a collateral claim and is it a colorful procedural or constant national claim the court found against me on both of those and so i have to convince you that that was wrong and  goes the reason that this is a collateral claim is because we're not asking the district court to jump in and decide the issues in the administrative people we only ask for an injunction while those things get decided or while we have a pre term a nation hearing which we are absolutely entitled to and which frankly no one claims we have half but you're merits on the merits of your claim for an injunction is saying you're entitled to another hearing because otherwise you're deprived of due process and you have a case  that i'm terrible with names saying that you're not entitled to hear these matters the statute was written to protect you it's to protect the people who need your services and your response is but here it was really unfair and and in essence to to rule in your favor on the due process issue wouldn't we actually have to address the merits and say we have to be answer is unequivocally no you would not and we are only at the jurisdictional level and the question is whether or not the district court can exercise jurisdiction i'm going to make a distinction for you between the cases that find the mathews versus eldritch exception applicable and those that don't what is your best case for the proposition that you have the standing to sir the interests of your it isn't injunctive relief petition part of that is is a judgment about what is the effect on public so i do think that is part of the analysis i will also again point out footnote ninety five in which even the district court said that i had had met that particular level but but if i might get to the distinction between what is completely collateral and what is not you will find that in every case including the matthews case including the corporal case which was a tenth circuit case back in one thousand nine hundred six and including the family rehab case which i cited to you the fifth circuit case each one of those case cases is the lack of a pre term a nation hearing that's what they have in common where the district court went wrong is applying this inextricably intertwined language that comes from the versus ringer case i'll tell you why that's wrong the heckler versus ringer case is not a pre term anation hearing case it is a case where where medicare recipients were trying to establish through the administrative process their right to have certain surgeries done they were trying to establish that right it was not a case where the property interest or the liberty eggs interest existed and it was a question of how you terminated they were trying to establish that right in that context the united supreme state supreme court said hey really this is not a constitutional case you're just trying to establish the right to these surgeries and in that case the cases are going to be strictly intertwined but you're familiar with a geriatrics case which denied said you don't have a right to a hearing yes yes and to just english that you had to make an argument that seems to me comes as being pretty close of the merits i don't want so maybe i misunderstood your argument how do you distinguish geriatrics have a cough i remember the geriatrics case it's the one i'm thinking of i believe the court in that case a nurse and yet found jurisdiction then did the flexible due process analysis and found that there was no claim right now so that and the reason i haven't got haven't had the benefit of that no no no but what it shows is what it's that is you have no right to it here ok and so that shows that your claim here isn't e distinguish the difference between actually finding a due process violation and finding whether there is an allegation a colorable allegation of a violation of due to due process are two different things one is based on the pleadings one is based on facts all right you in that case you found jurisdiction then you apply the flexible test with respect to the level of due process do and right to a theory this is missing that as a provider and that's a very general statement and it might very well be a bit if that's correct or if that applies if you don't have a color review to determine whether or not and at what level of due process my client is intitled prior to the terminations that's what that case stands for and in fact i think they are all pretty consistently it in that same vein what happened at the district court here was the trial court said i'm going to go ahead and dive into the facts and i'm going to use that as my colorable mess argument when instead she should have found jurisdiction and then let me have a hearing and fully flesh out the level of due process which i think considering the at the promulgated been of a retroactive immediate rule in this particular case would have unquestionably i hope a loud me to get a pre term anation here or at least that's the argument and that's how i would distinguish it i see i only have about a minute left and if you don't mind i think i'll try to reserve that right right claim that's well established law going back forty years the problem with lvalues cases they have neither so the distinction they're trying to make on saying colorable doesn't require showing success on the merits it doesn't really get them administrative case so if that's the case then there is no way for the court to issue any relief in this case injunctive or otherwise because they would necessarily have to dive into the issues before the administrative or there's simply no valid argument here that the bally's claim in this case anyway collateral to their administrative keep case there as judge robinson found nearly identical all that is and i can provide you with like just a few things about the family rehab case i would argue that more directly comparable cases out of the sixth circuit and that's cathedral rock cited in the government's brief in that case much like in this case the provider was terminated it filed a lawsuit either the same day or the day before the termination went to fact that's the same as in this case in family rehab the provider had i think accomplished two out of the four administrative steps but the third step had a three year backlog bally's l j hearing in this case is s a nation here and that's exactly what they did in matthews as well so there's cases where you can find that they apply matthews in the color will they do the analysis under mathews for a colorful claim in a collateral claim and they might assert jurisdiction but then they den das case it's a district court case but it has a very well established or well set out analysis and in that case they actually go through all the appellate court cases that have denied every germination hearing in the context of  so i would argue that there is neither a cultural or a collateral claim here and the problem for bally is that you do have to look at the merits of the underlying claims at the kind of underlying nature the factual background of what's going on because that's an intricate part of the jurisdictional us and it's not enough to just come and say hey i'm starting this claim please let me in the door and then we'll deal with the fallout of that later matthews is a pretty strict test because it is the only way to get around what the very well established in long collateral it's in everyway typed the outcome of the termination decision not and that's very different than in matthews where the plaintiff there was challenging the process generally not necessarily as it applied so i'm looking at the family rehab case here in i'm just going to read you a piece of it sounds a lot like what you're proposing councils arguing here in this is begins with the government's rebuttals are unavailing first it continues that by attempting to prevent the recoupment of its medicare payments family rehab effectively seek substantive relief not so family rehab seeks only the temporary suspension of recoupment until a hearing which is quite different from a permanent reinstatement of the benefits and mean that seems to me that there the fifth circuit was saying look we're going to preserve the status quo here and that seems what they're asking for there they're not asking for us to determine that they're right they're just asking for the opportunity to you know present present their case to before they're put out of business right right and so how do you how do you get around that well i think that j s hearing scheduled in june they want it to last through any appelle the through the department appellate board the appeal that a l j decision and any subsequent judicial review their complain also request of the court if and when it becomes necessary to issue a permanent injunction against them being terminated so bluebell is not asking for up review terminations hearing they're asking for enough hearings that what if we construed as just  in correct as to other parts maybe maybe they don't have a right to an injunction on some of the out but maybe they do have the right to an injunction on the pre term anation hearing idea well i'm not sure how they couldn't show a likelihood of success when winning on the pre term a nation hearing claim when maybe not all courts but nearly all courts have rejected that as a colorable claim that would somehow blue valley out as the provider that gets a hearing before the terminations as you can go into effect and it's not a situation where bluebell hasn't already had some process there was a written back and forth before the termination decision ever went into effect  so i think the notion that you could just get an injunction on this one issue kind of overlooks the true nature of blue balance case but also is that the pretty dangerous precedent for medicare in trying to make effective administrative decision well let's start let's talk about jurisdiction so the district court here kicks it out on jurisdiction the family rehab case says no there is jurisdiction here that i mean presumably they could still go back to judge robinson and lose correct and job robinson's order actually noted that even if she had taken jurisdiction excuse me she would have denied the injunction right as there's no colorable case so that might be i mean that's advisory i don't have jurisdiction but if i did i would deny it so seems like i mean maybe they get maybe they lose again maybe that's already the writing's on the wall but that don't you think that the jurisdictional determination i mean at least as far as when you're comparing it to this family rehab case that it may be wrong well i would dispute that it's wrong and i again i would draw your attention to the  generals and might have worked under mathews analysis might have worked in the matthews case because there was sort of a vindication of this right in general and when the court in matthews looked at the right to pre term a nation hearing for social security way deserves be terminations hearing because the decision was so wrong there's no way for any court to evaluate that claim without looking at whether that decision was right or wrong which would require the court to immerse itself and a matter that's still pending before the and university of kansas law school and he had a case before the supreme court in which the opposing attorney was a former student and she gets about a minute or two into the argument and he scribbles a note and puts it on her podium we don't do this in supreme court our kids you know write notes to pose in counsel and the notes that slow down he was still teaching her case is not a subject matter jurisdiction case which i thought was correct and it was not even that was not even the issue on appeal so that the review that was done at that stage was an overall application of due process principles not a color counsel here that there are many many cases which find jurisdiction and then go on to find but no there is no additional due process necessary i believe first of all that i've established a colorable claim and that if i get to take that next step because of this rule making issue which by the way was just heard last week in the supreme court in the airline a case which i submitted the supplemental authority was just heard last week not only was not only his my claim colorable i think judge robinson was dead wrong when she said that there is no right to a notice and comment period for this kind of rule not just color wrong i think that's very important in this case and i think just the fact that search was granted in that case in an opinion that was written by brett kavanaugh before he went on the court in the d c circuit just got granted and the argument was last week this is more than a colorable case this is a good due process case and so if we look at it to me it's the difference between granting a summary judgment and deciding a case after you've listened to all of the facts colorable list is just do i get in the door i'm not claiming i've proven my case yet but i think we've gotten in the door and certainly with that line it is part of getting in the so you're in the  used and please give us or injecting ourselves personal advice but it's always good for young lawyers to hear court is in recess until tomorrow morning and it