[00:00:02] Speaker 05: Case number 19-5116, Community Oncology Alliance Inc. [00:00:07] Speaker 05: Appellate, which is Office of Management and Budget at L. Mr. Shaffer for the Appellate, Ms. [00:00:12] Speaker 01: Dixon for the Appellate. [00:00:44] Speaker 03: I proceed. [00:00:45] Speaker 01: Good morning. [00:00:46] Speaker 03: Good morning. [00:00:47] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:49] Speaker 03: My name is Lauren Stacil on behalf of Appellant Community Oncology Alliance. [00:00:55] Speaker 03: In this case, community oncology raised a constitutional challenge to the application of the Balanced Budget Act to permit the executive branch to amend an entirely separate statute, the Medicare Modernization Act, by changing the formula [00:01:12] Speaker 03: for reimbursement of Part B drugs. [00:01:16] Speaker 03: On this appeal, community oncology contends the District Court erred in two ways. [00:01:21] Speaker 03: First, by improperly rejecting appellants' application for a three-judge court, and second, by erroneously dismissing [00:01:32] Speaker 03: appellant's complaint for lack of subject matter jurisdiction. [00:01:35] Speaker 03: And there were two key rulings that we can test that formed the basis of those ultimate decisions. [00:01:42] Speaker 03: First, the district court ruled that appellant in its complaint for declaratory and injunctive relief under section 922A2 of the Balanced Budget Act did not allege a constitutional claim. [00:01:56] Speaker 03: And that then led to the court's further conclusion that a three-judge court was not warranted. [00:02:02] Speaker 03: And the second erroneous ruling was that the district court, despite the claims under the Balanced Budget Act, said that community oncology's claim was really arising under the Medicare Act. [00:02:17] Speaker 03: and then held that the claims were barred by virtue of a preclusion for judicial review of, quote, determinations of payment amounts under the Medicare Modernization Act. [00:02:28] Speaker 03: Wasn't the payment very plainly under the Medicare Act? [00:02:32] Speaker 05: I'm sorry, I didn't hear you. [00:02:33] Speaker 05: Wasn't the payment very clearly under the Medicare Act, so therefore the claim would have been. [00:02:38] Speaker 03: The determine of payments itself are clearly defined under the Medicare Act. [00:02:43] Speaker 03: Yeah, right. [00:02:43] Speaker 03: But the Medicare Act created a formula and it said specifically that the reimbursement rate for Part B drugs will be the average sales price plus six percent. [00:02:56] Speaker 03: It was a separate statute, the Balanced Budget Act, the later statute, that gave the executive branch the right to effectively amend the Medicare Act. [00:03:09] Speaker 05: He gave the Executive Branch directions to act under the Balanced Policy Act in applying the Medicare. [00:03:16] Speaker 03: But the directions, Your Honor, were to impose sequesters that, in this case, led to the Executive Branch, not the legislature, redefining the formula and saying that the... How did the Executive Branch, rather than the legislature, do that? [00:03:34] Speaker 05: I'll tell you what... Whoa! [00:03:36] Speaker 05: The legislature told them, Congress told them, [00:03:39] Speaker 05: under the Mount Vegard Act to make certain sequestrations. [00:03:45] Speaker 05: How is the executive branch supposed to act other than to follow the section? [00:03:50] Speaker 03: Well, because it gave the executive branch discretion to reduce the form. [00:03:54] Speaker 05: Well, the section didn't do that, but that doesn't make it a constitutional claim. [00:03:57] Speaker 05: The reason I say that you disagree with the executive of fled. [00:04:02] Speaker 03: No, Your Honor, here's where I think that the problem lies, and that's set out in the Clinton v. City of New York case, because what effectively in that case, you could argue, Congress did the same thing. [00:04:13] Speaker 03: Congress said to the President, we have the Balanced Budget Act, we have the Tax Reform Act, but if you don't like certain things in that, we're going to let you change them. [00:04:21] Speaker 03: And the Supreme Court said that is impermissible because under the presentment clause, that allows the executive branch effectively to either repeal or amend a congressional act. [00:04:33] Speaker 03: Similarly here, where the executive branch was given the discretion to reduce by up to 2 percent what the formula in the Medicare Act said, [00:04:44] Speaker 03: We contend that that really is no different than what happened in Clinton. [00:04:48] Speaker 01: Mr. Stachel, even if you're right that the district court overlooked the constitutional claim that was pleaded in the complaint, which I think you characterize as an as applied challenge to the sequestration order, under the statute that allows certain claims to be expedited, it sounds like your claim falls in, what is it, 922? [00:05:14] Speaker 01: A1, which is a claim for declaratory or injunctive relief on the ground that an order that might be issued pursuant to the Balanced Budget Act. [00:05:24] Speaker 01: In other words, a sequestration order violates the Constitution. [00:05:28] Speaker 01: And that sounds like that exactly describes the claim you're bringing that a sequestration order violates the Constitution because it amounts to vesting the executive with this line item veto-like authority. [00:05:40] Speaker 03: We actually contend that it's not 922A1, but that our claim is brought under 922A2. [00:05:46] Speaker 01: Which you have to in order to have an entitlement to it. [00:05:49] Speaker 03: Correct. [00:05:49] Speaker 03: Correct. [00:05:50] Speaker 03: Because that applies to individuals and not members of Congress. [00:05:52] Speaker 03: But the language of 922A says that any member, I'm sorry, any [00:05:59] Speaker 03: person adversely affected by any action taken under this title may bring an action concerning the constitutionality of this title. [00:06:07] Speaker 01: Of this title. [00:06:08] Speaker 01: Of this title. [00:06:08] Speaker 01: Of the Balanced Budget Act. [00:06:09] Speaker 01: You're not challenging the Balanced Budget Act. [00:06:11] Speaker 01: You're challenging the way it's been applied through sequestration orders, which are explicitly discussed in 922A1. [00:06:20] Speaker 01: And given the statute, even if we were to agree with you that the district judge erroneously overlooked [00:06:27] Speaker 01: your constitutional challenge to the sequestration order. [00:06:31] Speaker 01: I'm not sure that gets you there under 912. [00:06:33] Speaker 03: Well, here's why I think it does, Your Honor, because the term concerning the constitutionality of this title, we think, means that we don't have to make a facial challenge that the entire budget balanced budget act is unconstitutional. [00:06:50] Speaker 03: What we've said specifically, as applied by the executive branch in amending a separate statute, [00:06:57] Speaker 03: that application is something that also concerns the constitutionality. [00:07:02] Speaker 01: Again, that might get you there, but we have 922A1, which seems quite clearly to talk about constitutional challenges [00:07:14] Speaker 01: to sequestration orders, if any. [00:07:16] Speaker 01: Congress does fail to get its act together and stay within the balanced budget. [00:07:21] Speaker 01: And there are sequestration orders. [00:07:23] Speaker 01: And a challenge to a sequestration order as a violation of the Constitution, it's hard not to read that as the right avenue for your case. [00:07:32] Speaker 01: And as you know, the reason that you're struggling against that is because only members of Congress can bring those claims before it's rejected. [00:07:39] Speaker 03: But I think those deal with anticipated orders. [00:07:41] Speaker 03: In this case, we already had the action taken. [00:07:44] Speaker 03: by a statute that permitted it. [00:07:46] Speaker 03: And so our contention is that if the statute, the Balanced Budget Act, permits the executive branch the discretion to make an amendment [00:07:56] Speaker 03: How is that any different than in Clinton versus New York where the statute said you are permitted to excise any provisions of the Balanced Budget Act or the Tax Reform Act that you don't like? [00:08:10] Speaker 03: And so that's effectively what we're saying happened here and that we think that the language concerning the constitutionality of this title can, that that can be embraced by that language because concerning [00:08:24] Speaker 03: in the case law that we provided does have a connotation of a wider breadth and so we think that the use of the word title shouldn't preclude a challenge that otherwise so clearly fits within the prohibitions. [00:08:37] Speaker 02: That might make sense in the, excuse me, in the abstract if we just had A2 but it's [00:08:47] Speaker 02: It's a harder case for you in the context of a statute which distinguishes between challenges to an order and challenges to the title. [00:08:58] Speaker 03: Well, I think that to limit, it's not simply the particular sequestration order that is the challenge here. [00:09:05] Speaker 03: The challenge, I mean, that certainly is what creates the specific claim. [00:09:09] Speaker 03: But the overall challenge is to, as I said, the structure of the two statutes side by side that permits the executive branch and the Balanced Budget Act to affect what has already been ruled upon by Congress to be a formula. [00:09:25] Speaker 01: If you're under, [00:09:27] Speaker 01: 922A2, there is this requirement under 922A4 that you serve the complaint on the House and Senate. [00:09:34] Speaker 01: Was that something that you did? [00:09:35] Speaker 03: I don't believe that the complaint itself was served on the House and Senate, but I know that there was certainly that the secretary was put on notice well before the complaint was filed of the objections specifically is set out, and there are exhibits in the joint appendix that indicate that. [00:09:54] Speaker 01: And when you say that, that actually leads me to my next question, which is about presentment. [00:09:58] Speaker 01: Tell us how you satisfied presentment, because the secretary doesn't think you did. [00:10:02] Speaker 03: In terms of the channeling requirement? [00:10:04] Speaker 01: Presentment under Section 405, yeah. [00:10:08] Speaker 03: OK. [00:10:08] Speaker 03: I didn't know if you meant presentment under the constitutional clause. [00:10:10] Speaker 03: OK. [00:10:12] Speaker 03: First of all, there were numerous objections that the secretary made to the complaint. [00:10:18] Speaker 03: The only one that [00:10:20] Speaker 03: The district court judge ruled on it was the issue that we've been discussing. [00:10:24] Speaker 03: The channeling argument that the claim had not been properly presented was not one that was ruled upon by the district judge, so we don't think it's appropriate here. [00:10:36] Speaker 05: Isn't it jurisdictional? [00:10:37] Speaker 05: I don't believe it is, Your Honor. [00:10:38] Speaker 05: You don't think so? [00:10:39] Speaker 01: No. [00:10:40] Speaker 01: The presentment, under our precedent, the presentment requirement is jurisdictional, even if the exhaustion requirement may be waived. [00:10:48] Speaker 03: So in that sense, let me correct myself. [00:10:52] Speaker 03: And that's the only issue that the Secretary took up, the presentment, not the exhaustion. [00:10:56] Speaker 03: Right. [00:10:57] Speaker 03: And here, it's clear that there was an affidavit submitted below by the executive director of the Community Oncology Alliance. [00:11:06] Speaker 03: that specifically said that claims themselves that had been submitted by oncologists and had been paid at the revised formula rate, and under the case law that we cited in our brief, that is sufficient to satisfy the presentment. [00:11:23] Speaker 03: It does not have to go all the way up to the secretary. [00:11:25] Speaker 02: Right, but you're not seeking review of any one of those particular claims. [00:11:32] Speaker 02: You're seeking review of [00:11:34] Speaker 02: a legal issue that's embedded in all of those claims just in the abstract. [00:11:39] Speaker 02: That's absolutely right. [00:11:40] Speaker 02: And in fact, that's what the channeling requirement says you can't do. [00:11:44] Speaker 02: You need to be seeking review of a final decision of the secretary made after a hearing to which you're a party. [00:11:52] Speaker 03: I think if this claim arose under the Medicare Act, that would be true. [00:11:56] Speaker 03: But because we... It does arise under the Medicare Act for these purposes. [00:12:00] Speaker 03: Well, our contention, Your Honor, is that as alleged in the complaint, [00:12:04] Speaker 03: the claim arises through an application of the Balanced Budget Act. [00:12:09] Speaker 02: What's the source of your claimed entitlement to reimbursement for Part B Medicare drugs? [00:12:16] Speaker 03: We're not seeking reimbursement. [00:12:17] Speaker 03: The claim seeks declaration and injunctive relief. [00:12:21] Speaker 03: It is not seeking individual reimbursement claims, and we're making no argument. [00:12:24] Speaker 02: What's the source of your constitutional injury, your client's injury? [00:12:29] Speaker 02: It's that members aren't getting sufficient reimbursement for Part B Medicare drugs. [00:12:36] Speaker 03: Well, it certainly affects the reimbursement, but we don't have individualized claims for the differential between ASP plus 6% versus ASP plus 4.3%. [00:12:49] Speaker 02: It's not being... I mean, if you don't have individual claims, that's why you haven't satisfied presentment requirement. [00:12:57] Speaker 03: Your Honor, I think that we have statutory standing by virtue of an association group. [00:13:04] Speaker 03: I think that the claim is that under the Balanced Budget Act, as you know, as I've said probably too many times today, that we're making an as-applied challenge. [00:13:14] Speaker 02: Sure. [00:13:14] Speaker 02: And you want to say that your claim arises under the Balanced Budget Act rather than under the Medicare Act? [00:13:23] Speaker 02: Correct. [00:13:25] Speaker 02: Supreme Court decided Weinberger versus Salphy, which says that if you're bringing a constitutional challenge to some limitation on Medicare payment, it's actually Social Security, but the same principle, right? [00:13:42] Speaker 02: The claim arises under the Medicare statute for purposes of 405G and 405H. [00:13:50] Speaker 02: Even if it also arises under the Constitution in the sense that the Constitution is some alternative source of law that you're invoking, that same principle governs this case where you're invoking a different statute, the Balanced Budget Act, in order to impact how much money you are entitled to under the Medicare Act. [00:14:14] Speaker 03: Well, I think that, as we argued in our brief, I think we do satisfy the presentment provisions under the Medicare Act. [00:14:24] Speaker 03: I think that the steps taken that were outlined are sufficient and that that is [00:14:30] Speaker 03: that I think a national association for home care, for example, we were not required to bring the constitutional claim to the secretary, but rather by presenting actual claims that were affected by the sequester, that was sufficient. [00:14:48] Speaker 01: I know this isn't before us, but I'm just trying to understand the nature of the case that you're bringing. [00:14:54] Speaker 01: If you were to prevail and obtain declaratory injunctive relief [00:15:00] Speaker 01: Is it your view that then oncologists could go back retrospectively and try to get supplemental payment or only prospectively? [00:15:12] Speaker 03: Yeah, we're not, first of all, we're not representing individual oncologists, so I can't speak to all of them, but our claim in anticipation of that question, yes, we are seeking that if the statute were deemed to be unconstitutional as applied, that we would go back to the formula that exists in the Act going forward. [00:15:32] Speaker 01: And how, I mean, if I were an oncologist that is part of your alliance and I disagree and I want to try to go back and get [00:15:42] Speaker 01: what I thought was the increment of undercompensation going back to 2013, would I be precluded? [00:15:50] Speaker 03: So I think that our narrow answer would be, and then I'll get to the harder part, our narrow answer would be that if the relief that we're seeking [00:15:59] Speaker 03: were granted that it would set the clock back as of today. [00:16:03] Speaker 03: To then say, if an individual oncologist said, well, gee, since that statute was unconstitutional, and I've had six years of being under-reimbursed, I want to make a claim. [00:16:14] Speaker 03: I honestly don't know how that would fare. [00:16:17] Speaker 01: And obviously, that's not before us. [00:16:19] Speaker 01: Another question also not before us, just trying to understand the nature of your case. [00:16:24] Speaker 01: And the government raises this. [00:16:27] Speaker 01: in a way benefiting from the limitation within the sequester that Medicare services, payments for Medicare services are reduced by a much smaller amount than the otherwise across-the-board cuts. [00:16:43] Speaker 01: And your argument is no, [00:16:47] Speaker 01: pharmaceuticals aren't services under that? [00:16:50] Speaker 01: And why is that beneficial to your members? [00:16:52] Speaker 01: I'm not really following that. [00:16:55] Speaker 03: And perhaps in retrospect, it was a little bit confusingly presented in the complaint. [00:17:00] Speaker 03: It is true that under section 906, D1A of the Balanced Budget Act, it did make reference to [00:17:15] Speaker 03: reimbursement cuts for payments for services furnished. [00:17:20] Speaker 03: And in the complaint we did identify that it wasn't clear that drugs was to be included in services. [00:17:28] Speaker 03: The purpose of doing that there was not to make an independent statutory interpretation claim, but to suggest that [00:17:36] Speaker 03: This in fact may have supported the idea that not only because we know under Clinton, even if Congress wanted to give the power to the executive branch to modify legislation, it can't. [00:17:47] Speaker 03: But we were suggesting that it wasn't even clear that Congress wanted that to happen here. [00:17:53] Speaker 03: I think in doing so it probably created some confusion and perhaps even the district court I think was confused because at the end she found despite numerous references throughout the complaint to the Constitution that we didn't make one. [00:18:07] Speaker 02: The vast bulk of your complaint argues that the action here was inconsistent with the Medicare statute. [00:18:16] Speaker 03: Well, I know that the government says that there are only, quote, stray allegations pertaining to constitutionality. [00:18:22] Speaker 03: I think that we went through pretty carefully and showed that in the preliminary statement, we talked about effectively amending. [00:18:29] Speaker 03: We talked about de facto amending. [00:18:30] Speaker 02: You have general language about effectively amending. [00:18:34] Speaker 02: You repeatedly invoke the presentment clause and separation of powers. [00:18:42] Speaker 02: In the abstract, those could support [00:18:45] Speaker 02: a Clinton versus Jones argument, or they could support a Dalton versus Specter argument, but they're usually invoked in connection with an argument that the statutory formula is the statutory formula. [00:19:01] Speaker 02: And, I mean, I think the closest you came, which is pretty good for you, but it is just a stray [00:19:08] Speaker 02: line is the reference in the complaint to this looks like a line item veto act, but most of it is really key to the Medicare statute. [00:19:19] Speaker 03: Well, I don't know if I've done a full quantitative analysis or a word count. [00:19:23] Speaker 03: I do think, as I say, that there are [00:19:26] Speaker 03: In paragraphs 34 and 37, we talked about the line out in veto as you indicated. [00:19:31] Speaker 03: In 53, we said that this was tantamount to an executive legislation drafting and represents a separation of powers violation. [00:19:39] Speaker 03: In paragraph 53, we talk about what section 922A2 provides in terms of [00:19:47] Speaker 03: a right for a great party to make claims. [00:19:50] Speaker 03: So I can't dispute that there is plenty of discussion about the statute itself, but I think at the end, I don't think that should have disqualified us and lead to a decision that the district court made which flatly said, she says that the community oncology does not claim [00:20:11] Speaker 03: that applying the Balanced Budget Act to the reimbursement formula for Medicare Part B drugs would violate the separation of powers. [00:20:17] Speaker 02: Do you agree that at least to the extent the complaint has an argument of the form, the statutory formula, [00:20:30] Speaker 02: under Medicare, there's no authorization under the Balanced Budget Act to change that. [00:20:35] Speaker 02: The President went and changed it and therefore violated the separation of powers. [00:20:41] Speaker 02: That sort of claim can't go to a three-judge district court. [00:20:48] Speaker 03: I think it can go to a three-judge court because I think if it's properly brought under 922.82, [00:20:55] Speaker 03: And I understand the court has questions about that, but if it does, I think 922A5 clearly says that that shall go to a 3-3. [00:21:01] Speaker 02: I mean, Dalton versus Specter says that you can't make what's otherwise a statutory claim into a constitutional claim just by saying the executive [00:21:15] Speaker 02: has no statutory authority, and therefore is violating separation of powers. [00:21:20] Speaker 03: Oh, I agree. [00:21:21] Speaker 02: That's a big part of the complaint, regardless of whether that's all of your complaint. [00:21:25] Speaker 02: That is a big part of it. [00:21:26] Speaker 03: Well, except, but Dalton versus Spencer, first of all, doesn't preclude a parallel track that a statutory claim and a constitutional claim could have been wrought. [00:21:35] Speaker 03: And the whole thing there was that if it's merely a statutory claim, it doesn't quote automatically. [00:21:41] Speaker 03: And I think the district court or something had said that that automatically raises constitutional issues. [00:21:45] Speaker 03: I think we have certainly from a pleading standpoint said what's sufficient. [00:21:52] Speaker 03: Thank you, Your Honor. [00:21:53] Speaker 03: I'll reserve 25 minutes for rebuttal. [00:21:57] Speaker 05: Thank you so much. [00:22:04] Speaker 00: Good morning. [00:22:06] Speaker 00: Good morning, and may it please the court, Courtney Dixon, for the government. [00:22:09] Speaker 00: Your Honor, the plaintiffs do not present a claim concerning the constitutionality of the Balanced Budget Act itself. [00:22:15] Speaker 02: Why not? [00:22:17] Speaker 02: I mean, I'll give you a spot here that 90% of the complaint is what I'm, for shorthand, calling a Dalton versus Specter statutory claim. [00:22:29] Speaker 02: But they do have this reference to [00:22:34] Speaker 02: and the Line Item Veto Act and why doesn't that at least for pleading purposes tee up an argument that the problem with this statute is the same problem in Clinton versus New York? [00:22:50] Speaker 00: Even assuming that that's a constitutional claim and I can put a pin in that and come back and discuss it, that still doesn't get them as they have alleged their claim here into Section 922A2 because at most [00:23:00] Speaker 00: They are challenging particular sequestration orders that have been issued under the balance of law. [00:23:04] Speaker 02: But just on the constitutional versus statutory point, does that get, does that check the box on constitutional? [00:23:10] Speaker 00: I think the district court correctly recognized that, as you understand, the vast majority of all plaintiffs' claims are alleging a statutory interpretation argument, then they throw in allegations about the separation of powers and the presentment clause. [00:23:22] Speaker 00: That's not enough to turn what is otherwise a run-of-the-mill statutory argument. [00:23:26] Speaker 02: I would agree with you on that, but they also throw in the Line Item Veto Act. [00:23:31] Speaker 00: That's not developing the complaint in any manner, Your Honor, and it's kind of hard to understand even what they mean by those allegations, given that if any... A reasonably competent lawyer and civil appellate would think, oh, that's Clinton versus New York. [00:23:44] Speaker 00: Well, Your Honor, the plaintiff's allegations, I think, amount to, well, even if Congress intended the sequestration of Medicare Part B drugs, that would still be this kind of problem. [00:23:53] Speaker 00: But of course, if Congress intended for Medicare Part B drugs to be sequestered under the Balanced Budget Act, it's hard to see how that is, quote, executive legislation drafting as they state in their complaint. [00:24:03] Speaker 00: But again, even putting a pin in that, setting it aside, assuming they have a constitutional claim, it's not to the Balanced Budget Act itself that's clear from the allegations in their complaint. [00:24:11] Speaker 00: It's quite clear from the declaratory and injunctive relief that they seek. [00:24:15] Speaker 00: They only seek to have particular orders set aside. [00:24:17] Speaker 00: They allege how CMS and OMB are together implementing the Balanced Budget Act as applied to Medicare Part B drugs. [00:24:24] Speaker 00: And of course, even in their reply in this court, and as they've said today, they're challenging particular sequestration orders, and their argument is only that Section 922A2 brought enough to encompass that. [00:24:35] Speaker 01: I think you just said that if Congress, if it were clear that Congress intended the sequestration to apply to Medicare Part B drugs, that it would be hard to see [00:24:44] Speaker 01: how that would be a separation of powers problem, but that really assumes an answer on the merits, doesn't it? [00:24:50] Speaker 01: I mean, they're presenting what they say is a claim, and whether it's an impermissible delegation or line item veto, they're saying that for Congress, even clearly and intentionally, to give that sort of, you know, [00:25:08] Speaker 01: plenary authority to the executive branch is unconstitutional. [00:25:12] Speaker 00: I didn't mean to get into the marriage, Your Honor, just to answer Judge Katz's questions about how it's not obvious to me that this is in any way similar to a Clinton versus New York type line-out and veto argument. [00:25:23] Speaker 00: But I take plaintiff's complaint entirely to be directed to sequestration orders that have been issued since 2013. [00:25:29] Speaker 00: that have applied, again, sequestration to Medicare Part B drugs. [00:25:33] Speaker 00: And CMS and OMB are, of course, both named as defendants. [00:25:37] Speaker 00: And throughout the complaint, they allege how CMS and OMB are implementing Balanced Budget Act sequestration. [00:25:42] Speaker 00: That's a claim under A-1, which only members of Congress can bring under this special review provision. [00:25:47] Speaker 02: It's a claim under A-1 in the sense that they're only asking for narrowly targeted relief. [00:25:58] Speaker 02: But they're challenging particular sequestration orders and relief... But if they have invoked this Clinton theory, the legal rationale would cover anything OMB does under the Balanced Budget Act. [00:26:15] Speaker 00: That's not how plaintiffs have drafted their complaint, Your Honor. [00:26:18] Speaker 02: Again, the complaint is entirely... Well, I'm distinguishing between the scope of the relief they're seeking and the breadth of the underlying legal theory. [00:26:27] Speaker 00: Again, Your Honor, it's not entirely clear to me that it's even the breadth of the underlying legal theory, given that plaintiff's entire argument is that how this particular sequestration order since 2013 are unconstitutional specifically as they apply to the Medicare Modernization Act and some kind of rewriting of that statute in particular. [00:26:44] Speaker 00: So it really is here the implementation of balanced budget act sequestration. [00:26:49] Speaker 00: since 2013 as applied to the Medicare statutes, not to the title itself. [00:26:53] Speaker 01: Are there cases, this hasn't been briefed, you know, if the case were to proceed and the statutory conflict were adjudicated, it would be, but are you aware of cases where there was a particular specific statutory formula that was, because of its specificity, held to survive and not be subject to sequestration? [00:27:16] Speaker 00: I'm not aware of any, Your Honor, the only time that I know that this three-judge court provision has been invoked specifically was in fact the case that became Bowser versus Sinar in the Supreme Court. [00:27:29] Speaker 00: The three-judge court was impaneled there and it went directly to the Supreme Court. [00:27:32] Speaker 00: And of course that challenge was to the constitutionality of the Comptroller General's then role in the statutory scheme. [00:27:40] Speaker 00: I think [00:27:41] Speaker 00: Of course, that kind of constitutional claim to the title itself and how sequestration worked across the board is quite different from plaintiff's claim here. [00:27:49] Speaker 00: So that's the one time that I know of, Your Honor, that this act was invoked. [00:27:54] Speaker 01: I'm not aware of any... I'm actually not asking a 922 question. [00:27:58] Speaker 01: I'm asking a question assuming that this warrant of three judge were the claim because it didn't fall within 922A2. [00:28:07] Speaker 01: but could be decided by a sole district court judge. [00:28:10] Speaker 01: Are there other cases like that that said, whoa, whoa, sequestration can't apply to this, that, or the other specifically formulated spending provision? [00:28:22] Speaker 01: because of its specificity? [00:28:24] Speaker 00: Not that I'm aware of, Your Honor, and I obviously haven't thought too hard about that question. [00:28:30] Speaker 00: Here, of course, not only do we have the three-judge court problem, but plaintiff's claim arises under the Medicare statute. [00:28:35] Speaker 00: And so the Medicare statute independently requires plaintiff's claim to be presented to the agency, which they haven't done. [00:28:40] Speaker 01: What about that? [00:28:42] Speaker 01: In terms of presentment, I understand there are the two separate issues, presentment and exhaustion. [00:28:46] Speaker 01: I gather you've abandoned the exhaustion [00:28:49] Speaker 01: claim in this court, but the presentment argument you do press. [00:28:53] Speaker 01: And Mr. Schasel says, well, you know, all of our clients have been presenting reams of claims and indeed in the declaration attached to the response to your argument in this regard, individual providers were identified and the effect on their businesses of these lower reimbursements [00:29:18] Speaker 01: were cited. [00:29:19] Speaker 00: First, I want to note that we haven't abandoned exhaustion. [00:29:22] Speaker 00: We've argued presentment here because, of course, that's the bare minimum, and they haven't satisfied that. [00:29:27] Speaker 00: So I don't want to say that we've abandoned exhaustion. [00:29:30] Speaker 00: But to go to your honor's question, the declaration that plaintiff identifies is from plaintiff's executive director. [00:29:37] Speaker 00: It was attached to the opposition to motion to dismiss. [00:29:40] Speaker 00: All that says is that all providers, not any particular provider identified, [00:29:45] Speaker 00: who have been reimbursed by Medicare have been reimbursed at the sequestered amount. [00:29:49] Speaker 00: There's no doubt that that's the case. [00:29:51] Speaker 00: They don't state, Your Honor, that anyone disputed that reimbursement that they received, that they raised the legal argument to the agency. [00:29:57] Speaker 00: Do they have to do those things for presentment purposes? [00:30:00] Speaker 00: Yes, Your Honor. [00:30:01] Speaker 01: Maybe for exhaustion, but for presentment purposes, they just have to ask for reimbursement. [00:30:04] Speaker 01: I mean, don't they typically say, [00:30:06] Speaker 01: you know, this number of procedures at this code and that's how they interact with the agency? [00:30:12] Speaker 00: The upshot of plaintiff's argument here is just that providers are receiving reimbursement as sequester amount. [00:30:16] Speaker 00: As you stated, certainly that's the case because these payments are being sequestered. [00:30:20] Speaker 00: But plaintiffs haven't said to the agency, that's unlawful, I need more money. [00:30:25] Speaker 00: They haven't disputed that payment and they haven't submitted, as far as we know, any claim for more money based on, hey, you can't sequester this money, it's unlawful. [00:30:33] Speaker 00: The entire point of the presentment requirement, Your Honor, is so that the agency can be presented with a legal argument and then make a decision in the first place, let alone the final decision that exhaustion requires. [00:30:44] Speaker 01: Under our cases, I don't see anything that says the presentment portion of the channeling requirement includes a legal argument. [00:30:52] Speaker 01: It's really about, you know, ripeness. [00:30:54] Speaker 01: We're avoiding an anticipatory challenge. [00:30:57] Speaker 01: Do we have, in fact, something that's already occurred [00:31:01] Speaker 01: that is being addressed? [00:31:04] Speaker 01: Is the agency actually acting in the way that the plaintiffs fear and claim that it will act? [00:31:08] Speaker 01: And yes, we know that. [00:31:10] Speaker 01: We know that in spades. [00:31:12] Speaker 01: That the agency has in fact been implementing the sequestration as they challenge, right? [00:31:19] Speaker 00: In terms of requiring a provider to identify the relevant legal issue here, that's this court's action alliance for senior citizens case. [00:31:27] Speaker 00: In that case, the agency had erroneously provided money, I think, refunds, and then it went to recoup that money. [00:31:35] Speaker 00: And people brought a legal claim. [00:31:38] Speaker 00: And the question was whether they had presented that to the agency. [00:31:40] Speaker 00: There were two potential statutory bases for recoupment or waiver of recoupment. [00:31:46] Speaker 00: And this court held that as to one of them, the claim hadn't been presented to the agency because in all of their communications with the agency, no provider had said, hey, under this statute, [00:31:56] Speaker 00: You can't recoup my money. [00:31:58] Speaker 00: And so I think that pretty clearly, Your Honor, is that the relevant legal theory has to be identified to the agency. [00:32:04] Speaker 00: And this court here said the idea that the agency is just supposed to know that a provider is dissatisfied and why, that would strip the presentment requirement of all meaning. [00:32:14] Speaker 00: And I think that's true of plaintiffs' claim here. [00:32:15] Speaker 00: The idea that the agency is just supposed to know that there's a particular legal theory by a provider that we're not supposed to be sequestering their funds, and from that the presentment requirement is satisfied, would not give the agency to make any decision at all. [00:32:27] Speaker 01: As I read Action Alliance, there we had a situation where there was no demand. [00:32:34] Speaker 01: There was no evidence that the individual had even made a demand for payment, and that had to be cleared up on remand. [00:32:41] Speaker 01: Whereas here, there is no question that members of the plaintiff organization have made many demands for payment. [00:32:51] Speaker 00: But you're right, there's no indication that a provider has made a demand for a payment of this sequestered amount that they allegedly haven't received, for example. [00:32:59] Speaker 00: A provider hasn't said, hey, you were supposed to give me that 2% that's not in my payment, or you gave me a lower amount of money. [00:33:05] Speaker 00: There's no indication that any provider at all has said that to the agents. [00:33:10] Speaker 01: there's no authority on the Secretary to do anything about that. [00:33:13] Speaker 00: Well, first, Your Honor, even if the Secretary doesn't have the ability to address a particular legal contention, that doesn't excuse the presentment requirement. [00:33:20] Speaker 00: That's the Supreme Court's and the Illinois Council, for example. [00:33:23] Speaker 00: And second, I wouldn't want to get out ahead of what the agency would say if it were presented with this legal claim. [00:33:29] Speaker 00: I mean, the plaintiff makes various allegations that's [00:33:31] Speaker 00: CMS had discretion to do various things that they haven't done. [00:33:34] Speaker 00: And so I don't want to, again, say what the agency would or wouldn't say if it was presented with this legal contention by a provider, which it undoubtedly has not been. [00:33:45] Speaker 01: So it is your position that an individual, for purposes of presentment, not for purposes of exhaustion, that the individual, in order to adequately present the claim, has to articulate a legal [00:33:59] Speaker 01: How do you square that with Matthews v. Eldridge and what's your best site for that other than AHA? [00:34:07] Speaker 00: Matthews v. Eldridge, that was a provider who had communicated with the agency, filled out a questionnaire with the Social Security Office, and then that claim arose in the context of that particular payment dispute. [00:34:18] Speaker 00: We don't even have anything close to that here. [00:34:20] Speaker 00: And to get to perhaps, Your Honor's concern, there obviously could be questions in individual cases about, well, did you raise this theory? [00:34:28] Speaker 00: Did you raise this theory? [00:34:29] Speaker 00: What theory is this? [00:34:30] Speaker 00: But here we have nothing. [00:34:31] Speaker 00: There's no indication that any provider at all has raised any kind of dispute with the agency about the payments that they're receiving. [00:34:39] Speaker 02: There's no payment decision before us. [00:34:41] Speaker 02: Right, Your Honor. [00:34:42] Speaker 02: We have no idea what happened in any individual adjudication. [00:34:47] Speaker 00: Yes, Your Honor. [00:34:48] Speaker 02: All we have here is plaintiff's statement that providers are receiving... That there were individual adjudications in which claims were presented. [00:34:58] Speaker 02: That's fine, but they're not seeking review of an individual denial. [00:35:03] Speaker 00: Yes, Your Honor. [00:35:04] Speaker 00: And even to back up, again, we don't know that any provider has disputed the payments that they're receiving from the agency at all. [00:35:09] Speaker 00: All plaintiffs have said is that, hey, people are getting paid the sequestered amount. [00:35:13] Speaker 00: And if that were enough for presentment, well, then everyone would have presented a claim because everyone would have been receiving these reimbursements. [00:35:19] Speaker 04: Are you saying they at least must ask for the rest of the money that would have been paid but for the sequestered amount? [00:35:24] Speaker 00: Yes, Your Honor. [00:35:24] Speaker 00: And that bare minimum, again, hasn't been done here. [00:35:27] Speaker 00: No, Your Honor, and again, plaintiffs dispute in their reply brief that they even have to show that, but of course that is the bare minimum of what presentment requires. [00:35:38] Speaker 01: And your best case for that is? [00:35:40] Speaker 00: We cite the Action Alliance case, but I think that's quite clearly the purpose of presentment, is that the agency has to be presented with an argument. [00:35:46] Speaker 00: And here, [00:35:47] Speaker 04: We don't have any indication. [00:35:51] Speaker 00: A claim, Your Honor, but a claim identifying a legal dispute that they have with the payment that they're receiving. [00:35:56] Speaker 01: Well, a claim for benefits that makes it concrete. [00:35:59] Speaker 01: I mean, as I read our cases trying to understand the difference between presentment and exhaustion, I understand the channeling requirement includes both. [00:36:07] Speaker 01: One harvests jurisdictional, the other's not. [00:36:10] Speaker 01: presentment is really an argument against the pre-enforcement challenge. [00:36:14] Speaker 01: It's saying, is there really something here that's actually happened that's not anticipatory, that's concrete? [00:36:20] Speaker 01: And then the argument about exhaustion is, and let's bring the agency's legal expertise to bear on the nature of the argument here. [00:36:27] Speaker 01: And I guess for presentment purposes in this posture, I don't take the [00:36:32] Speaker 01: secretary to be disputing in any way, shape, or form that due to the sequester, the amounts of reimbursement are lower. [00:36:39] Speaker 00: They must be. [00:36:45] Speaker 00: the agency an opportunity to make a decision in the first place. [00:36:48] Speaker 01: Exactly, and the decision has been made in this case, and you don't dispute that. [00:36:52] Speaker 00: No, Your Honor, we do dispute that, given that the decision, again, payments are just being made on the sequester. [00:36:58] Speaker 00: No one has said to the agency, you owe me more money because I've been paid at the sequester amount, give me the 2% that I haven't gotten. [00:37:05] Speaker 00: But the decision of payment has been made. [00:37:07] Speaker 00: People are receiving Medicare funds, I presume. [00:37:10] Speaker 00: I mean, again, they don't identify any particular provider, let alone state that any provider has raised a claim to the agency for the payment that they're not receiving. [00:37:21] Speaker 01: Separating out the two things, they have identified particular providers, and they have identified that those providers are now getting less reimbursement. [00:37:30] Speaker 01: So, I mean, obviously they could do that in a more granular way, but they have identified particular providers who they're saying are now [00:37:37] Speaker 01: struggling financially, which may not be the end of their exhaustion requirement, but they have done that. [00:37:43] Speaker 00: They name providers in their affidavit of an attempt to demonstrate their standing in the district court. [00:37:49] Speaker 00: Yes, but I mean that there's no indication that any provider has said to the agency, I deserve more money because of the legal theory or sequestration argument that's been advanced here. [00:38:03] Speaker 00: And that's the present requirement, Your Honor. [00:38:06] Speaker 01: I'm not sure we have to decide on that second part. [00:38:09] Speaker 01: I'm not sure we have cases that have so clearly articulated it the way you do. [00:38:13] Speaker 01: What about the jurisdiction strip? [00:38:16] Speaker 01: What's your position here? [00:38:17] Speaker 02: Can I just ask one more question on presentment before we... What about a different argument? [00:38:23] Speaker 02: We've been talking about whether presentment was satisfied. [00:38:27] Speaker 02: What about a different argument that you don't have to satisfy presentment [00:38:34] Speaker 02: Because what's different about this case from all the other, all the other presentment cases involve either issues of Medicare law, including whether particular Medicare provisions are constitutional or not. [00:38:52] Speaker 02: Whereas this case, the other issue is, has nothing to do with [00:39:01] Speaker 02: HHS expertise under the Medicare Act. [00:39:05] Speaker 02: It's an OMB issue. [00:39:07] Speaker 02: And so there's just no point in having the Secretary of HHS address that. [00:39:17] Speaker 00: I think similar arguments can be made about constitutional claims or procedural APA claims. [00:39:22] Speaker 00: But when those claims also arise under the Medicare statute, they still have to be presented to the agency. [00:39:27] Speaker 00: And I think the same is true here. [00:39:28] Speaker 00: Plaintiff's entire basis for standing is that it has standing because its members are injured by allegedly receiving less Medicare reimbursement that they're entitled under Section 159. [00:39:38] Speaker 02: I mean, constitutional claims can shade into Medicare claims through avoidance doctrines and the like. [00:39:46] Speaker 02: It's not clear to me that there's the same kind of interrelationship between the Medicare side of this, which is how do you calculate ASP plus 6% and [00:40:02] Speaker 02: Clinton versus New York, how does the Balanced Budget Act work and does it violate the separation of powers? [00:40:10] Speaker 02: They just seem very different. [00:40:12] Speaker 00: I think this claim could just as easily be restyled as a violation of Section 1395 W3A, that they're entitled to payment [00:40:19] Speaker 00: by virtue of that provision that's specified in that provision and that the Secretary, for example, is violating that by not giving them the payment to which they're entitled. [00:40:26] Speaker 00: It's indisputable. [00:40:28] Speaker 00: Their standing comes from the lack of Medicare reimbursement that they're receiving and that's the substantiation of their claims. [00:40:35] Speaker 02: I agree with you. [00:40:39] Speaker 02: test articulated in the cases of what's the basis for your standing and your claim for payment, it's met. [00:40:45] Speaker 02: No doubt about it. [00:40:46] Speaker 02: It just seems like this case is a little bit different. [00:40:50] Speaker 00: I think in Illinois Council, the Supreme Court made clear that even if the Secretary doesn't have the authority or expertise to address a particular contention, that doesn't move on to preclusion. [00:41:00] Speaker 00: You are asked about the more specific preclusion provision. [00:41:03] Speaker 00: As we note in our brief, because resentment hasn't been satisfied, this court can dismiss on that basis and the agency can decide in the first instance, if a claim is presented to it, whether Section 1395W3A applies. [00:41:17] Speaker 00: And as we noted in our brief, Your Honor, and as Judge Pillard, you indicated earlier, that makes good sense here, given that there's reason to doubt that a provider might share the legal theory that plaintiff advances here, given that the upshot of that could very well be that providers are worse off [00:41:30] Speaker 00: under the statutory interpretation that they have advanced. [00:41:34] Speaker 00: The agency can decide in the first instance whether this more specific preclusion provision, which is a preclusion of administrative and judicial review, might apply, and that was the order that this court also addressed those two things in the American Hospital Association case, addressed presentment first and then left to the agency to decide whether the more specific provision applied. [00:41:55] Speaker 01: On the more specific provision, it says there shall be no review of determinations of payment amounts under this section. [00:42:03] Speaker 01: And Mr. Stacil argues that they're fine with the determination of payment amounts under this section. [00:42:11] Speaker 01: That's exactly what they want. [00:42:13] Speaker 01: What they're challenging is the superposition on a determination of payment amounts under this section [00:42:22] Speaker 01: under the balanced budget amendment. [00:42:25] Speaker 01: And your position is that's nonetheless subject to this preclusion provision. [00:42:31] Speaker 00: Subsection G, the preclusion provision, precludes determinations of [00:42:35] Speaker 00: payment amounts and that subsection cross references the Medicare provisions that relate to ultimate reimbursement determinations. [00:42:43] Speaker 00: This court considered a similar language in the American Clinical Laboratories case and said that that suggests that Congress was trying to preclude review of ultimate payment determinations. [00:42:52] Speaker 00: And here we know that section 1395W3A is the provision that governs payment amounts for drugs that fall within it. [00:42:59] Speaker 00: So I think the natural understanding of that language is that it precludes review, the ultimate reimbursement determinations for these drugs. [00:43:07] Speaker 01: Well, it's the determination of the payment amount under the section because those are myriad and complicated and debatable and the system couldn't function if those calculations could be challenged. [00:43:18] Speaker 01: But again, in American Clinical, we said, well, there, it wasn't stripped because, if I'm wrong in the right case, because the data collection was a separate process and a separate provision. [00:43:31] Speaker 01: And here, it's even more separate. [00:43:33] Speaker 01: After the determination of a payment amount, there's a whole separate statute that says, now look at that, and parallel some portion of it. [00:43:42] Speaker 01: So why wouldn't that, under that same logic, [00:43:46] Speaker 01: separate and distinct kind of claim that's not precluded under this provision. [00:43:50] Speaker 00: I disagree that it's even more separate, Your Honor. [00:43:52] Speaker 00: If anything, it's even more straightforward in that this section precludes review of the ultimate reimbursement determinations. [00:43:58] Speaker 00: What CMS is paying for these drugs. [00:44:01] Speaker 01: Determination of those amounts under this section. [00:44:04] Speaker 00: Right, Your Honor. [00:44:05] Speaker 01: Not payment. [00:44:06] Speaker 01: Determinations of them under this section. [00:44:08] Speaker 01: Yes, Your Honor. [00:44:09] Speaker 01: This is not a determination of the section. [00:44:11] Speaker 01: I mean, I'm just beating you, beating a dead horse, but you get my... No, beat away, Your Honor. [00:44:17] Speaker 00: The first introduction of the clause of subsection G, where it says there shall be no determinations of judicial review under section 1395-00, et cetera, or otherwise, those are provisions that relate to the ultimate payment determination. [00:44:33] Speaker 00: CMS is giving you at the end of the day. [00:44:35] Speaker 00: That's what plaintiffs are disputing here. [00:44:38] Speaker 00: There's no question what they're being given at the end of the day. [00:44:40] Speaker 00: I don't think that changes merely because another statute is adding a step that CMS has to do in that if it's the ultimate reimbursement determination that's precluded. [00:44:50] Speaker 00: If anything, again, usually in these cases this court has, and that was the case in American Clinical Laboratories and some other, [00:44:57] Speaker 00: Tricky question of, well, they're trying to get review of this thing that happens before and how much is that. [00:45:02] Speaker 02: But here... The question is degree of intertwinement, right? [00:45:07] Speaker 00: Right, Your Honor. [00:45:07] Speaker 02: And here... I mean, the cases have two ideas running through them. [00:45:14] Speaker 02: One is, would review of the issue before the court effectively unravel the preclusion? [00:45:26] Speaker 02: Right, Your Honor. [00:45:27] Speaker 02: Now, if the statute bars review of methodology and someone or of estimates and someone says, well, review the methodology used to review the estimates, you can't untangle one from the other. [00:45:45] Speaker 02: This doesn't have that problem, right? [00:45:48] Speaker 02: The set of issues that would come up under the Balanced Budget Act are [00:45:57] Speaker 02: not in any way shape or form coextensive with the set of issues that come up under the ASP plus 6 percent calculations in the Medicare statute. [00:46:09] Speaker 02: So you don't have that problem. [00:46:11] Speaker 00: I think it's a matter of your honor. [00:46:13] Speaker 00: interpretation of the preclusion of review provision, because again, we think that section is most naturally read to preclude review of the ultimate reimbursement amounts that are paid for the drugs under the section. [00:46:24] Speaker 01: If that were the case, then American Clinical Labs would have come out differently, because that too, the data that was put into the calculus under the separate data collection and calculation, [00:46:35] Speaker 01: And that's why anybody wants to be, it had an effect on the ultimate payment amount. [00:46:41] Speaker 01: But it was, you know, it applied to people who aren't even seeking payments under the Medicare Act and extracted data from them. [00:46:51] Speaker 01: And so it was just seen as a different statutory activity and so too here for the reasons just Judge Katz has just articulated. [00:47:00] Speaker 01: It's a different question about how the Lynette and Vito Act does or doesn't apply. [00:47:05] Speaker 00: We are to the extent that the dispute though is about, hey, this is the money that I'm receiving. [00:47:11] Speaker 00: I think Section G could very naturally be read to mean that Congress wanted to preclude [00:47:18] Speaker 00: further disputes about that ultimate reimbursement determination. [00:47:21] Speaker 00: But as we note in our brief here, because the bare minimum presentment hasn't been satisfied, the agency can determine in the first instance when it's presented with a particular legal claim. [00:47:31] Speaker 00: And again, that's particularly appropriate here, because one, we don't know if this theory would be advanced before the agency. [00:47:37] Speaker 00: And two, the application of the preclusion provision might look differently depending on what exactly the claim before the agency is. [00:47:48] Speaker 01: I guess is more prominent when you're talking about the presentment and exhaustion process. [00:47:55] Speaker 01: Is there any question whatsoever that the secretary could respond in a relevant way to a claimant and oncology treating clinic that said, I want the full reimbursement amount unaffected by the sequester? [00:48:14] Speaker 01: What might even conceivably [00:48:17] Speaker 01: the agency add or how might the agency decide that case in a way that would be material to how that issue then would, assuming the provision didn't apply, how that ultimately would be resolved in court. [00:48:31] Speaker 00: I don't know the answer to that, Your Honor. [00:48:32] Speaker 00: I don't want to get out in front of what the agency would say if it were presented with a concrete claim complaint. [00:48:36] Speaker 01: But any idea of how, I mean, even theoretically, it could add value for the purposes of deciding the interplay of the balanced budget [00:48:47] Speaker 00: Well, a few things. [00:48:48] Speaker 00: I mean, first, again, CMS does have a role in implementing Balanced Budget Act sequestration when it gets an order from OMB, and that's a quite complicated process that I don't want to demonstrate my lack of knowledge of by trying to give it too much specifics. [00:49:04] Speaker 00: But second, even if, again, as I mentioned earlier, an agency [00:49:11] Speaker 00: doesn't have particular expertise or even authority to address a contention, that doesn't excuse presentment. [00:49:17] Speaker 00: I'll also note that a lot of the allegations in plaintiffs' complaint go to the effect that sequestration has on the Medicare system as a whole and how it is harming Medicare recipients. [00:49:29] Speaker 00: And to the extent that plaintiffs have these larger arguments, the agency could very much have expertise and light to shed on those kind of allegations, Your Honor. [00:49:38] Speaker 00: But again, I don't want to get out in front of the agency about what they would say if [00:49:41] Speaker 00: They are indeed presented with this kind of legal argument. [00:49:46] Speaker 00: Thank you. [00:49:46] Speaker 00: The district court should be affirmed. [00:49:48] Speaker 00: Thank you. [00:49:52] Speaker 01: Did Mr. Cecil have any time remaining for rebuttal? [00:49:57] Speaker 01: Council did not have any time remaining for rebuttal. [00:49:58] Speaker 01: Mr. Cecil will give you two minutes. [00:49:59] Speaker 01: Oh, great. [00:50:00] Speaker 03: Thank you. [00:50:01] Speaker 03: I really wanted to just touch on two points. [00:50:05] Speaker 03: One is, I think I misspoke earlier when Judge Katz has asked about whether we had [00:50:10] Speaker 03: set a copy of the complaint to representatives of the House and Senate. [00:50:15] Speaker 03: And I said, I did not think so, but I've been advised that that did occur. [00:50:19] Speaker 03: So I wanted to, that under 904, we satisfied that provision. [00:50:25] Speaker 03: And the other issue I wanted to address is, because Judge Pillard and Judge Casas, you were interested in the distinction between 922A1 and A2. [00:50:35] Speaker 03: And at one point, I think I said that [00:50:39] Speaker 03: we viewed that 922A1 could involve what I refer to as an anticipatory claim. [00:50:45] Speaker 03: And I think, Judge Cassis, that you showed some skepticism. [00:50:51] Speaker 03: And let me tell you what I was getting at specifically. [00:50:54] Speaker 03: In 922A1, it gives Congress the right to bring an action for declaratory judgment and injunctive relief on the ground that any order that might be issued [00:51:07] Speaker 03: pursuant to Section 904 of this title violates the Constitution. [00:51:11] Speaker 03: And we argued in our brief that that provided a broader right to Congress that an individual did not have, which is that might, now I realize you could read it. [00:51:24] Speaker 02: I was skeptical, and here's why, which is [00:51:30] Speaker 02: A1 is narrower in the sense that the focus of the challenge is on an order, and A2 is broader in the sense that the focus of the challenge is to the statute. [00:51:45] Speaker 02: As a general matter, challenges to statutes can often be brought pre-enforcement. [00:51:55] Speaker 02: Challenges to orders almost by definition are post-enforcement or at least post-order. [00:52:03] Speaker 02: So it seems a little unlikely to say that the distinction between one and two is that one, [00:52:14] Speaker 02: governs anticipatory challenges and two governs existing, two applause after the order's already in place. [00:52:29] Speaker 03: No, I understand that, but I just wanted to point out what I was referring to. [00:52:32] Speaker 03: And also I think that in this case where Congress was very much aware through communications, some of which are attached as exhibits to the complaint, [00:52:42] Speaker 03: was aware of this issue that was brewing and that the Budget Act, the Balanced Budget Act could give, could result in exactly what did result. [00:52:53] Speaker 03: Certainly, a party like Community Oncology couldn't have gone in advance and said, we think this is about to happen, please enjoin it, whereas Congress would have that right under A1. [00:53:06] Speaker 02: You don't think under A2 before [00:53:13] Speaker 02: any sequestration order had been issued that you could have filed the lawsuit you're filing now and saying and said the Title II is unconstitutional because it permits the executive to override otherwise binding statutory formulas. [00:53:39] Speaker 03: Well, in terms of as applied challenge, I'm not sure that we could have if nothing had happened. [00:53:48] Speaker 03: Whether we could have made a facial challenge is a question that I probably haven't given enough consideration to. [00:53:54] Speaker 02: I mean, the heartland of A2 seems to be facial challenges. [00:53:59] Speaker 01: And the A1, I mean, it seems like the most reasonable reading of order that might be issued is this is a Congress [00:54:08] Speaker 01: that doesn't want to have to resort to sequestration orders, right? [00:54:12] Speaker 01: This is being enacted by Congress that said this is the stopgap if, you know, our future colleagues are unable to actually pass a budget that comes in. [00:54:25] Speaker 01: And so it might be issued as saying they may not be ever issued, right, looking forward. [00:54:29] Speaker 01: This may be a null set. [00:54:31] Speaker 01: So it seems to me that the might is more readily understood that way. [00:54:37] Speaker 01: Thank you.