[00:00:01] Speaker 00:
Case number 20-1585, Lee Memorial Hospital et al., a balance, Billings Clinic et al.

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versus Norris W. Cochran, Acting Secretary, U.S.

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Department of Health and Human Services.

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Mr. Bradley for the appellant, Mr. Schultz for the appellate.

[00:00:17] Speaker 05:
Good morning, counsel.

[00:00:18] Speaker 05:
Mr. Bradley, please proceed when you're ready.

[00:00:22] Speaker 04:
Good morning, and may it please the court, I'm Keith Bradley, representing the hospitals in this case.

[00:00:28] Speaker 04:
The previous proceedings involved a serious jurisdictional error in which the district court asserted jurisdiction to decide the merits of claims that the board had never considered.

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Today, I'd like to make three things clear.

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First, that jurisdictional defect is important.

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It would be valuable for the court to make plain that the secretary cannot waive a jurisdictional prerequisite that Congress assigned to the board.

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Second, the hospitals are not engaged in gauging ship.

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They had nothing to gain from waiting to see how the merits of the appeal would turn out before raising this issue.

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Third, the panel's prior decision is not law of the circuit or of the case that the district court had merits jurisdiction over these claims.

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First, with respect to jurisdiction, the board dismissed the claims and denied expedited judicial review.

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That's EJR.

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The district court then found that the legal issues

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satisfied the criteria for EJR and concluded that it had jurisdiction under the EJR provisions.

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Under ELINA, that can't work, and the government does not contend it can.

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Instead, the government says it waived the need for a board merits decision.

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We too had accepted that at oral argument before.

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But for that waiver to be possible, it would have to be the case that a board merits decision is not a jurisdictional necessity.

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If it were, the government couldn't waive it.

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And in fact, HHS has told every other court so far as we can find that a board decision is indeed a jurisdictional prerequisite.

[00:02:07] Speaker 04:
That makes sense.

[00:02:09] Speaker 02:
The waiver concept- Your clients argued that there was jurisdiction last time.

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Was that a reasonable argument?

[00:02:16] Speaker 04:
To be honest, we were mistaken when we said that before.

[00:02:21] Speaker 02:
I didn't ask whether you were mistaken.

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I just asked, did you make a reasonable, albeit mistaken, argument for jurisdiction, or was it an unreasonable argument advanced to this court?

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So I wanted to, if I may, I'd like to distinguish two different things that we said about jurisdiction.

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First, at the district court level, we had signed up for this idea of a self EJR finding.

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That was reasonable at the time, but Alaina foreclosed it.

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Second, to this court, we put forth the waiver idea as well.

[00:02:57] Speaker 02:
Postalina, postalina, you mean?

[00:02:59] Speaker 04:
Yeah, postalina, yes.

[00:03:02] Speaker 04:
I don't think that it was a good argument.

[00:03:05] Speaker 02:
I'm not, I'm asking that.

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Was it reasonable?

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Let me ask you, was it mistaken, but was it unreasonable?

[00:03:13] Speaker 04:
It's not even arguable, what you said.

[00:03:17] Speaker 04:
I don't, well, I don't think it was arguable.

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Was it reasonable to violate rule 11?

[00:03:24] Speaker 04:
I don't think that we had violated rule 11.

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But you had a colorable, plausible argument.

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Colorable, yes.

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I don't think that's what arguable means in the arguable basis concept, though.

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I'm just asking you to describe.

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Yeah.

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Because we asked for briefing.

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You did.

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For this question.

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Many questions were asked during oral argument about it.

[00:03:48] Speaker 05:
They were.

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And an argument was made to us.

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My assumption was that the attorney had come here in good faith and made was reasonable, but you now think mistaken argument about this unresolved jurisdictional question.

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But now you're telling me it wasn't even reasonable.

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I don't think it rose to the level of Rule 11 by any means, to be sure.

[00:04:17] Speaker 02:
But you're telling me it wasn't even reasonable.

[00:04:19] Speaker 04:
No, I don't think it was reasonable on either side.

[00:04:21] Speaker 02:
No, I'm not asking outside.

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I'm asking you to talk.

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This was your client's argument.

[00:04:25] Speaker 04:
Absolutely.

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Understood.

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Unreasonable.

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OK.

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I don't think it was reasonable.

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We have now had the benefit, obviously, of thinking about this at much greater length than we had in the pressures of the time.

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And as much as we've read about this since then, no.

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What were the pressures of the time?

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I thought, was there a lack of time to think through the argument?

[00:04:45] Speaker 04:
Well, several things.

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One is, yes, there was some amount of time pressure just because it was rising.

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The court did issue its order, but we were arriving at a law argument.

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But then in addition, this is one of the things that comes from these consolidated cases.

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There were also 30-odd hospitals there for which there was no jurisdictional question.

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um that um you know that council was also representing with um you know just addressing the merits of their cases but but it wasn't a snap answer at oral argument right there this was an issue that had been flagged ahead of time that you had had time to think the court the court did the court did issue that order asking us to discuss it and mr bradley the uh the district court in the first go round issued an order a final judgment

[00:05:38] Speaker 01:
that applied not only to the parties that we had jurisdiction over, but also everybody in the case.

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And the judgment was that they own the merits, correct?

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Correct.

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Correct.

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And then when the panel heard the case, the final judgment of the panel was to affirm

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that ruling by the district court holding against your clients on the merits.

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Correct?

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Correct.

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And so for us, for this panel to disagree with that would be a violation of the law of the circuit, number one,

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and a violation of the law of the case, number two, isn't that correct?

[00:06:40] Speaker 04:
Respectfully, Your Honor, I don't think that it would for two reasons.

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One is, I mean, although they're both rooted in what the Billings decision said, it said explicitly, we are not deciding that the district court had jurisdiction.

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We are leaving that question unresolved.

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the sentence at the end.

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And the reason is, let me just follow up here because there's an analogy here.

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I don't think the parties have drawn up, but let me explain the analogy.

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When we have a standing case, if we have 20 parties and one of them has standing, we don't care whether the other 19 do or not.

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But when we render a decision involving all 20,

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All 20 of those parties are bound by that decision.

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What's the difference between what happened in the first go-around in this court and that sort of a situation which happens rather commonly in this court?

[00:07:43] Speaker 04:
We, we have explored what would happen, what happens after the decision and I want to be clear also the decision in buildings is binding precedent for what the court said about the mayor, you know, the court said various things that is all binding precedent for everybody.

[00:08:00] Speaker 04:
But with respect to its being a law of the case or preclusive or other effects like that, binding on the party specific fashion that you just suggested, we have searched and we have not found cases applying that effect to the other 19 parties.

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Now it does not often happen

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the circumstances of this case are a little bit unique in that it does not often happen that once the court has issued- Actually, they're not very unique.

[00:08:34] Speaker 01:
I mean, it's very close to the decision of our court in bank in Leshawn many, many years ago, I mean, two decades ago, in which we held that the law of the case and law of the circuit, et cetera, also apply to jurisdictional determinations.

[00:08:53] Speaker 04:
It does.

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But I submit that in Lashawn, you wrote that it applies to decisions made by necessary implication, whereas here the panel, it cannot be necessarily implied because the panel explicitly said they were not deciding it.

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And I will offer to you, in addition, a case after Lashawn.

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called Independent Petroleum Producers Association of America, in which the court proceeded to decide a jurisdictional question that had not been settled by the previous case.

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There had been two parties before the court in that previous case, and the court in the subsequent decision proceeded to say, yes, but that's only things that are necessarily implied.

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Since it was not necessarily implied in that previous decision,

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We have here the authority to decide the jurisdictional question that has come squarely before us.

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And then in independent petroleum association, the court then decided that as to the second party, there had been no jurisdiction.

[00:09:54] Speaker 01:
No, you should have applied for rehearing or rehearing in bank if that's your position after the initial decision by the court of appeals, because you lost on the merits.

[00:10:05] Speaker 01:
even though the court made no determination about whether it had jurisdiction over you.

[00:10:09] Speaker 01:
And it's the same thing as in standing.

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If you had a problem with that, then your only recourse was to petition for certiorari or rehearing.

[00:10:18] Speaker 01:
You didn't do either one.

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You're bound by that.

[00:10:22] Speaker 02:
You did petition for rehearing and you didn't raise the issue.

[00:10:25] Speaker 04:
We did.

[00:10:27] Speaker 04:
We did.

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If I may, I have- Did you not have enough time?

[00:10:31] Speaker 02:
You said there is not enough time before oral argument to sort out the jurisdictional issue but but argument was December.

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I think your rehearing petition was

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next September.

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Was nine months enough time to figure out this problem?

[00:10:46] Speaker 04:
It was, but if I may about... I'm sorry, back up.

[00:10:49] Speaker 02:
I'm sorry, you said that was sufficient time?

[00:10:51] Speaker 04:
Yeah, as far as rehearing goes, yes, but if I may about the rehearing, two thoughts there.

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One of which is that, again, this comes back to the fact that these were all consolidated.

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there were we believed problems with the decision on the merits as well and for all of these hospitals that were there and had no jurisdictional defect they also had within the limited space confines of a rehearing petition something that needed to be said and then this and and moreover a rehearing petition obviously the court has no

[00:11:26] Speaker 04:
It has full discretion, whether to grant it or not, and it is unusual to grant one, whereas the rules prescribe a mechanism for what to do if there has been a jurisdictional defect, namely a motion under Rule 60 before, which is exactly what we did.

[00:11:41] Speaker 02:
So because of strategic choices about how to use your word limit, you

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didn't raise it at rehearing and waited, I think, two more years to file a 60-B petition?

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That's the theory?

[00:11:52] Speaker 04:
Well, there is no time limit, of course, on Rule 60 before.

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And then the second thing that I'd like to say about this is- No, no, no.

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I'm just asking, you said you didn't have enough space in your rehearing petition.

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So you were aware of the issue, but- If I can just finish my sentence.

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So you were aware, you had your nine months now to think about it.

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So you are aware of the jurisdictional problem, but you had the folks that for which there was jurisdiction and disputedly.

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And they wanted to raise merits issues.

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And so a strategic decision was made just to seek rehearing on those merits questions and not to raise this jurisdictional issue that you are aware of.

[00:12:27] Speaker 04:
To be candid, your honor, I do not recall whether we were aware of it at the time of the hearing petition.

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But you had asked whether it would have been possible to be aware.

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And in the nine months, I don't want to assert to you that we could not have figured that out.

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So I don't mean to suggest that we did make a strategic decision, simply that in the circumstances, it would not be

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I submit that it would not make sense to require that parties go through the rehearing process rather than through the Rule 60 process that is set out in the rules.

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The other thing I'd like to point out about this is that as a practical matter, it would not have made any difference to do it one way or the other.

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Had the parties raised it in rehearing petition or in the oral argument, what would have happened is that the cases would have gone back, they would have been remanded to the board, they would have come back up through the process.

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The Barrett's decision in Billings would have been binding precedent, whether for good effect or as it happened for ill effect.

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And in fact, these same parties, many of them are litigating claims involving some of these same rules in the district court below right now.

[00:13:33] Speaker 04:
That case was actually stayed.

[00:13:36] Speaker 02:
For the same years?

[00:13:37] Speaker 04:
For many of the same years.

[00:13:38] Speaker 04:
I'm not sure that we cover all of the same years, but many of them, yes.

[00:13:41] Speaker 02:
Do they include any additional years?

[00:13:43] Speaker 04:
I believe they do include clints of additional years.

[00:13:46] Speaker 04:
Yes.

[00:13:46] Speaker 02:
Yes.

[00:13:46] Speaker 02:
Well, that's quite different then because our decision was very much at this time.

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This was reasonable by the.

[00:13:52] Speaker 04:
Yeah.

[00:13:53] Speaker 04:
So what I'm trying to figure out some of the same years.

[00:13:56] Speaker 02:
So I'm trying to figure out here is what's the point?

[00:14:01] Speaker 02:
Because normally what happens in these standing cases is someone's seeking APA relief, declarative relief, injunctive relief that's going to control their case.

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their position, there's nothing more to be done.

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And so let's say you're right.

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And so we grant, we agree with you, it's vacated or mandamus, whatever one you want.

[00:14:27] Speaker 02:
We send it back to the district court and it's dismissed from there and you go back before the board and the board gives you the EJR and then you go back to the district court.

[00:14:37] Speaker 02:
Would you agree that the district court's decision is going to be completely controlled by the billing's decision at that point?

[00:14:44] Speaker 04:
As a matter of circuit precedent, yes.

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Billings is going to be binding precedent on the district court.

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So it's a fair question.

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Why do we want to do this?

[00:14:55] Speaker 04:
In the court below, we are litigating further matters about some of these same rules.

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We believe that there is more to be said about them.

[00:15:02] Speaker 02:
Wait, further matters, like different arguments?

[00:15:04] Speaker 04:
Different arguments.

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And it is outside the record.

[00:15:08] Speaker 02:
But I can say that- You're clearly bound as to these years.

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You're clearly bound by race judicata.

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If you sought summary judgment in the district court, the first round, you cross moved.

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And so you had your chance there to raise all the arguments that you wanted.

[00:15:23] Speaker 02:
I mean, there's no way you get to fight those same years again and just say, OK, now we've thought of some new arguments?

[00:15:32] Speaker 04:
If I may respond?

[00:15:34] Speaker 04:
Yes.

[00:15:34] Speaker 04:
If there is no judgment against these hospitals, I submit that there would not be race judicata against them arising from buildings.

[00:15:44] Speaker 04:
And it would only be the binding precedent, which, of course, has a broad sweep, but would leave room for further arguments, of which we think there are some important ones.

[00:15:54] Speaker 05:
And are you saying that any further proceedings of every step that you need to go through were gotten through what happened in the district court here?

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without regard to your ability to bring a claim somewhere else?

[00:16:09] Speaker 04:
Our intent is to bring them back up to the district court.

[00:16:13] Speaker 04:
We would probably we could not.

[00:16:15] Speaker 04:
Obviously, I don't want to commit for that judge that for that court that it would accept them into the same case as a matter of related cases or that they would get consolidated.

[00:16:23] Speaker 04:
But that's that is what we would do.

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That was what we would seek to do.

[00:16:29] Speaker 05:
OK.

[00:16:30] Speaker 05:
Unless my colleagues have any further questions for you, we'll hear from the government.

[00:16:36] Speaker 05:
Mr. Schultz.

[00:16:39] Speaker 03:
Thank you, Your Honor.

[00:16:40] Speaker 03:
Benjamin Schultz on behalf of the government.

[00:16:43] Speaker 03:
In the original litigation, the plaintiffs insisted that this court and the district court properly could exercise jurisdiction over all plaintiffs.

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And this court ultimately concluded that it didn't need to resolve the jurisdictional question, and it affirmed the district court's judgment

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in full.

[00:17:00] Speaker 03:
Because this court concluded that it could affirm the judgment in full without need to resolve the jurisdictional question that the plaintiffs are now presenting, Billings Clinic can be the beginning and end of this case because Billings Clinic shows that the judgment could be affirmed without need to address this jurisdictional question.

[00:17:18] Speaker 03:
At a minimum, avoid judgment cannot be a judgment that the Court of Appeals says can be affirmed whether or not there was jurisdiction.

[00:17:27] Speaker 03:
Even if this court doesn't want to go that route, and we think that's just a simple, easy way to do this, even if this court doesn't want to go that route, it can also apply general principles of Rule 60B4.

[00:17:39] Speaker 03:
This court held in the Delta Foods case that even in a Rule 60B4 motion, if a party had a fair opportunity to attack jurisdiction the first time around and simply declines to do so, then that party cannot attack jurisdiction

[00:17:54] Speaker 03:
in a Rule 60B4 motion, except perhaps in some very, very narrow circumstances, which are far afield from the circumstances of this case.

[00:18:02] Speaker 03:
The case is actually an easier case than Delta Foods, because not only did the plaintiffs have a fair opportunity to raise their jurisdictional objection, they affirmatively argued to this court that there was jurisdiction.

[00:18:15] Speaker 03:
I'd be happy to address the jurisdictional arguments itself if the court wants to talk about them.

[00:18:21] Speaker 03:
Again, I don't think there's any need for this court to reach that,

[00:18:23] Speaker 03:
But if the court would like to, I'm happy to do it.

[00:18:26] Speaker 03:
I'm also happy to talk about mandamus if the court has questions there.

[00:18:29] Speaker 03:
But I think it's pretty clear that the district court in this case did issue a full and complete judgment that resolved all claims.

[00:18:35] Speaker 03:
So there is nothing to mandamus.

[00:18:37] Speaker 03:
And unless the court has further questions, we'll rest on our briefs.

[00:18:40] Speaker 01:
I think I know the answer to this, but I'll ask for your view.

[00:18:44] Speaker 01:
Are you familiar with Capron versus Van Norden?

[00:18:47] Speaker 03:
I'm sorry, what case?

[00:18:48] Speaker 01:
Capron versus Van Norden.

[00:18:51] Speaker 03:
I'm not specifically familiar with that one.

[00:18:53] Speaker 01:
Not actually a recent case.

[00:18:54] Speaker 01:
It was decided in 1807 by Chief Justice Marshall.

[00:19:01] Speaker 01:
And it's a case where it went up on appeal and the it was a diversity of citizenship case, as I recall.

[00:19:08] Speaker 01:
And so it goes up on appeal.

[00:19:10] Speaker 01:
The party, the plaintiff lost in the district court goes up on appeal.

[00:19:16] Speaker 01:
The plaintiff said, well, although we invoke

[00:19:19] Speaker 01:
diversity jurisdiction and lost, there really was no jurisdiction.

[00:19:25] Speaker 01:
And the question was whether the losing party is permitted to raise that jurisdictional claim when that's the party that invoked jurisdiction.

[00:19:36] Speaker 01:
How would you distinguish that case?

[00:19:38] Speaker 03:
Well, Your Honor, I'm not familiar with it, and I don't think opposing counsel has cited it, but I will say that whatever that case said in 1807, it certainly would have predated the modern civil rules.

[00:19:52] Speaker 03:
So I think at least one way to distinguish it

[00:19:55] Speaker 03:
is we currently have Rule 60B-4.

[00:19:58] Speaker 03:
That would be the vehicle that they would use to attach jurisdiction.

[00:20:01] Speaker 03:
And this court would apply Rule 60B-4 jurisprudence in a way that wouldn't have been true in 1807.

[00:20:06] Speaker 03:
And this court's established case law under Rule 60B-4 solves this.

[00:20:11] Speaker 01:
I would distinguish it, too, because, but on a different basis, that it was on direct appeal.

[00:20:17] Speaker 03:
I'm sorry.

[00:20:18] Speaker 03:
I didn't understand that, Your Honor, that it was a direct appeal.

[00:20:19] Speaker 03:
That certainly would also be a grounds for distinction if that was the case.

[00:20:23] Speaker 03:
Yes.

[00:20:24] Speaker 01:
Yeah.

[00:20:25] Speaker ?:
OK.

[00:20:25] Speaker 05:
Can you just say, you said this most straightforward route for us to resolve the case was your first ground as opposed to getting to Delta Foods.

[00:20:35] Speaker 05:
The first ground, we do have a 60B4 motion that the district court disposed of and the denial of which has been appealed to us.

[00:20:43] Speaker 05:
So we have to apply some standard for 60B4.

[00:20:48] Speaker 05:
And your first ground again is what in response to the fact that there is a 60 before motion that.

[00:20:53] Speaker 03:
Yeah.

[00:20:53] Speaker 03:
So to get 60 before relief, the first step is you have to show that the judgment is void, which means that there's some sort of fundamental infirmity.

[00:21:01] Speaker 03:
Our initial position is there does not even any infirmity because this court has already held and it is the law of this circuit that the district court's judgment could be affirmed without regard to whether or not there was jurisdiction over the motion plaintiff's claims.

[00:21:17] Speaker 03:
Okay.

[00:21:19] Speaker 02:
What is the government's view on what a fundamental jurisdictional error is, or when the Supreme Court said in the United Student Aid case, only, quote, certain types of jurisdictional errors are covered by 64?

[00:21:38] Speaker 03:
The Supreme Court case law talks about kind of three different categories of things

[00:21:44] Speaker 03:
One is, and there's different terminology, but I think it's more or less the same thing.

[00:21:50] Speaker 03:
One is, it talks about like a manifest lack of jurisdiction, which may be the same as there wasn't even an arguable basis for jurisdiction.

[00:21:58] Speaker 03:
Then there's two other really narrow exceptions about when there may be another tribunal and you're substantially infringing on it.

[00:22:06] Speaker 03:
And then there's, I think, a third exception, which I'm sorry.

[00:22:13] Speaker 03:
that if the original court was incapable of resolving the jurisdictional question the first time around, and we're far afield from any of those narrow exceptions.

[00:22:23] Speaker 03:
And frankly, I don't think the court even needs to get into those exceptions because the first ground that we've presented doesn't even reach that, which is that it's already the law of this circuit that the judgment could be affirmed without.

[00:22:33] Speaker 02:
But if we look back at the time of our decision, so before we had that law of the circuit, at the time of our decision, was it arguable

[00:22:44] Speaker 02:
or I guess manifestly erroneous to conclude that there was jurisdiction to enter a conclusive judgment on the summary judgment, affirming summary judgment on the complaint that they joined.

[00:22:54] Speaker 03:
So we think it was at a minimum arguable and in fact correct for at least two different reasons.

[00:23:00] Speaker 03:
One is the waiver theory, which we think is logical.

[00:23:03] Speaker 03:
It's supported by text and Supreme Court precedent.

[00:23:06] Speaker 03:
The Ninth Circuit has expressly found in a section 1395 OOF1 case

[00:23:12] Speaker 03:
that the exhaustion requirement can be waived.

[00:23:15] Speaker 03:
And we think there's case law from this and other circuits that also suggests that the term final decision in 1395 OOF1 has the same meaning that it has in section 405 G. In addition, there is certainly case law that says that there are times in which it is appropriate for a court to exercise hypothetical statutory jurisdiction.

[00:23:35] Speaker 03:
And I'm not sure that that's precisely what this court

[00:23:38] Speaker 03:
did when it decided building.

[00:23:41] Speaker 02:
We were quite clear that we were not exercising jurisdiction over hypothetical jurisdiction over the other hospitals.

[00:23:47] Speaker 02:
We just didn't find it necessary to resolve their jurisdiction because they were looking for declaratory relief in the case.

[00:23:54] Speaker 03:
Sure.

[00:23:55] Speaker 03:
Sure.

[00:23:56] Speaker 03:
And I don't mean to suggest that this court engages in the actual practice of hypothetical statutory jurisdiction.

[00:24:01] Speaker 03:
But I think what that case law shows is that there can be times in which it is appropriate for a court

[00:24:07] Speaker 03:
to resolve a case on the merits despite doubts over statutory jurisdiction.

[00:24:11] Speaker 03:
And that doesn't render the judgment void.

[00:24:14] Speaker 02:
And with your analogy to the 405G jurisdiction, is there any case you can point me to in which the government would agree that there is jurisdiction even if no one within, under 405G, no one within the agency addressed the question?

[00:24:33] Speaker 02:
The merits question was being appealed.

[00:24:34] Speaker 02:
No agency.

[00:24:36] Speaker 02:
It's not a question of the ALJ decided it, but whether they exhausted their appeal rights.

[00:24:40] Speaker 02:
No one in the agency had actually addressed the question.

[00:24:43] Speaker 03:
I'm sorry.

[00:24:45] Speaker 03:
So you're asking, is there a situation in which, is there a case in which the government agreed to 405G jurisdiction, despite the fact that no one in the agency had addressed a question on the merits?

[00:24:57] Speaker 02:
Either the government agreed or

[00:24:58] Speaker 02:
a court has found for a 5G jurisdiction without any agency decision on the question that is now before the court.

[00:25:06] Speaker 03:
My recollection is that in either Matthews v. Eldridge or Weinberger v. Salfie or both, the issue was a constitutional question that the agency disclaimed any ability to rule on.

[00:25:17] Speaker 02:
So I think that- The agency had first made that decision.

[00:25:19] Speaker 02:
You mean it had decided that- It had said, we're passing this on.

[00:25:25] Speaker 03:
So yes, I think you're right that they said, hey, there's this claim

[00:25:29] Speaker 03:
But they also said we're not going to decide it on the merits.

[00:25:33] Speaker 02:
All right, which we didn't have here.

[00:25:35] Speaker 02:
The agency didn't do that step here, the board being the agency.

[00:25:39] Speaker 03:
Well, I think the board said that it was going to dismiss the case entirely.

[00:25:43] Speaker 03:
You had a case that the plaintiff said, hey, we have a case.

[00:25:46] Speaker 03:
And the board said, no, you don't.

[00:25:48] Speaker 03:
Your case is dismissed, gone, totally over.

[00:25:50] Speaker 02:
Completely different grounds.

[00:25:51] Speaker 02:
Well, completely different grounds.

[00:25:52] Speaker 02:
And the question of presenting the merits claim, the board here never

[00:25:57] Speaker 02:
was given the opportunity to look at it and say, we think we can decide it, or no, that's outside our wheelhouse.

[00:26:04] Speaker 02:
We're sending it up to the court.

[00:26:06] Speaker 03:
Well, I think there was a request for expedited judicial review, and the board denied it.

[00:26:11] Speaker 03:
Now, maybe it denied it on a different basis rather than whether or not it had the authority to rule on it, but it did deny the request for expedited judicial review.

[00:26:20] Speaker 05:
OK.

[00:26:21] Speaker 05:
I have one last question just on your threshold law, the circuit ground, and it's just that

[00:26:27] Speaker 05:
Is what does that apply anytime a court actually addresses jurisdiction, so that it means a 60 before is just unavailable if the 60 before objection is jurisdictionally grounded anytime the in the previous round jurisdiction was in fact addressed.

[00:26:41] Speaker 03:
We honor it, I think what's because it's a law of the circuit question it's about what the Court of Appeals held yeah yeah that court right right so if a Court of Appeals issues a binding decision.

[00:26:52] Speaker 03:
then that decision is binding until overruled by the circuit en banc or the Supreme Court.

[00:26:57] Speaker 03:
And 60B4 is just unavailable.

[00:26:59] Speaker 03:
Correct.

[00:26:59] Speaker 03:
So for example, if this court had held affirmatively that there was jurisdiction over all plaintiffs, and then the plaintiffs had come in on 60B4 and said that was plainly erroneous, it would still be the law of the circuit unless and until the court en banc or the Supreme Court overruled it.

[00:27:16] Speaker 05:
OK.

[00:27:16] Speaker 05:
If my colleagues don't have any further questions for you,

[00:27:20] Speaker 05:
We'll hear from Mr. Bradley for his rebuttal.

[00:27:21] Speaker 05:
Mr. Bradley, we'll give you two minutes for your rebuttal.

[00:27:24] Speaker 04:
Thank you.

[00:27:25] Speaker 04:
One thing I would just like to correct about what I said earlier, in the case that's going on below, these hospitals are litigating some different years and other hospitals are litigating the same years.

[00:27:37] Speaker 04:
Again, part of the complexities.

[00:27:39] Speaker 02:
Your clients are litigating different years.

[00:27:41] Speaker 04:
Yes.

[00:27:42] Speaker 04:
Other hospitals in those cases.

[00:27:43] Speaker 02:
But you don't represent those other hospitals.

[00:27:45] Speaker 04:
No, we represent all of them.

[00:27:46] Speaker 02:
But the argument here is for the folks who are only arguing about New Year's.

[00:27:54] Speaker 02:
Sorry.

[00:27:54] Speaker 04:
Correct.

[00:27:55] Speaker 04:
I just wanted to be precise about what I had said.

[00:27:58] Speaker 04:
It remains true that if we were to get a remand back to the board and we come back up, we would try to add these claims into that same case where other hospitals that we represent are litigating some of these same years from billings.

[00:28:12] Speaker 04:
With respect to the law of the case, I'd like to quote a little something from the 10th Circuit case that we quoted in our brief.

[00:28:21] Speaker 04:
cannot be the case that a theoretical consideration of a jurisdictional issue should not be confused with the implicit but actual determination necessary to invoke the law of the case.

[00:28:34] Speaker 04:
If this distinction were denied, no jurisdictional deficiency could ever escape the preclusive reach of the doctrine that would clearly undermine the efficacy of Rule 60 before and contradict the many decisions that have implemented the rule to overturn jurisdictionally foiled final judgments.

[00:28:50] Speaker 04:
That was a case in which the parties had not properly raised the issue and taken an appeal and then

[00:28:56] Speaker 04:
The 10th Circuit held that Rule 60 before relief was appropriate.

[00:29:00] Speaker 04:
We cited other examples of that as well in our briefs.

[00:29:05] Speaker 04:
This court, as the panel has recognized, explicitly did not decide that there was jurisdiction.

[00:29:11] Speaker 04:
And I submit that that question remains open for you to decide.

[00:29:14] Speaker 02:
In that 10th Circuit case, did they argue jurisdiction on appeal?

[00:29:20] Speaker 04:
On appeal, they did not, on the original appeal, they had not.

[00:29:24] Speaker 02:
Right, yes, the original appeal, they had not.

[00:29:27] Speaker 04:
They had not, correct.

[00:29:31] Speaker 05:
Okay, thank you, counsel.

[00:29:32] Speaker 05:
Thank you to both counsel.

[00:29:33] Speaker 05:
We'll take this case under submission.