[00:00:00] Speaker 02:
Case number 24, that's 5172.

[00:00:03] Speaker 02:
Monty A. Rose Jr.

[00:00:05] Speaker 02:
et al.

[00:00:05] Speaker 02:
versus Robert F. Kennedy Jr.

[00:00:07] Speaker 02:
Secretary, United States Department of Health and Human Services in his official capacity et al.

[00:00:13] Speaker 02:
Indiana Family and Social Services Administration et al.

[00:00:17] Speaker 02:
Mr. Barta for the et al.

[00:00:19] Speaker 02:
Mr. Boldy for our police, Robert F. Kennedy Jr.

[00:00:21] Speaker 02:
et al.

[00:00:22] Speaker 02:
Mr. Redd for our police, Monty Rose Jr.

[00:00:25] Speaker 02:
et al.

[00:00:26] Speaker 03:
Good morning.

[00:00:29] Speaker 07:
May it please the court, the Healthy Indiana Plan, or HIP, expanded Medicaid to cover hundreds of thousands of users, while allowing all beneficiaries to make small, predictable contributions to power accounts, to access benefits that traditional Medicaid does not provide, like vision and dental, and to avoid making unpredictable time of service co-payments that would apply under traditional Medicaid.

[00:00:52] Speaker 07:
The secretary reasonably determined that HIP would likely advance Medicaid's goals of allowing Indiana to continue providing greater coverage than would otherwise exist.

[00:01:03] Speaker 07:
In vacating the waiver, the district court made three principal errors.

[00:01:06] Speaker 07:
First, it moved the statutory baseline for assessing projects requiring the secretary to explain why HIP was better than hypothetical alternatives rather than just why it would likely advance the statute's objectives.

[00:01:18] Speaker 07:
Second, it shifted its focus from the project as a whole to

[00:01:23] Speaker 07:
to individual elements of that project.

[00:01:26] Speaker 07:
And third, it imposed a remedy that not only fails to redress the injuries alleged, but whose disruptive effects are out of proportion to the alleged error.

[00:01:36] Speaker 07:
But before I get to the merits, let me first address this court's jurisdiction.

[00:01:42] Speaker 07:
In assessing the finality of orders, this Supreme Court has told us we must take a practical view of finality.

[00:01:50] Speaker 07:
And when it comes to remand orders, this Court has made clear that two types of orders that may be labeled a remand order are nonetheless final.

[00:01:58] Speaker 07:
orders that effectively terminate the action, or orders where there is a danger that the party would not have an opportunity to appeal later.

[00:02:06] Speaker 07:
And here we have both.

[00:02:08] Speaker 07:
As for effectively terminating the action, the order vacates the 2020 approval, giving plaintiffs full relief on count one.

[00:02:17] Speaker 07:
And there is nothing more the district court could do with respect to count one of the complaint,

[00:02:22] Speaker 07:
because all that count one challenges is the 2020 approval, not individual elements of that approval.

[00:02:29] Speaker 04:
That's going to be true often.

[00:02:30] Speaker 04:
in remands.

[00:02:32] Speaker 04:
That is exactly what the plaintiffs asked for.

[00:02:35] Speaker 04:
So in that sense, it will be full relief.

[00:02:37] Speaker 04:
But the whole rationale of this doctrine is that, well, we'll see what you get on remands.

[00:02:43] Speaker 04:
They're going to revisit the issue.

[00:02:45] Speaker 04:
And either side, Indiana as well as the other side, will have the opportunity to challenge that decision once it issues.

[00:02:56] Speaker 07:
So there will be a new decision on remand, but any future litigation about that decision is not about the 2020 approval.

[00:03:05] Speaker 07:
And I think that's one of the critical.

[00:03:07] Speaker 05:
Why does that matter?

[00:03:08] Speaker 07:
So I think that's one of the in two ways, Your Honor.

[00:03:10] Speaker 07:
First, as to when we're looking at what effectively terminates the action, we first have to ask, what is the claim on which the district court entered the Rule 54B judgment?

[00:03:19] Speaker 07:
And the claim here, as the district court noted, is about the 2020 approval and that approval only.

[00:03:25] Speaker 07:
not individual elements who can continue to be disputed or litigated on remand.

[00:03:30] Speaker 07:
And I think the second reason goes into, can this effectively be reviewed later?

[00:03:37] Speaker 07:
Here, any future litigation is going to concern the new agency action.

[00:03:42] Speaker 01:
And I think the concern is that your argument just describes the exact prototypical case we've said isn't appealable every time a district court vacates an action and remands.

[00:03:55] Speaker 01:
to see if that same action can be justified.

[00:03:58] Speaker 01:
That's sort of the baseline situation in which we say it's not appealable.

[00:04:03] Speaker 01:
So I think you need a reason that this case is different from that, don't you?

[00:04:07] Speaker 07:
So I think there are two reasons.

[00:04:10] Speaker 07:
The first goes to does this effectively terminate the action?

[00:04:13] Speaker 07:
I think given how the boundaries of the actual claim at issue count one, that this is very much like the American Great Lakes case where there was going to be continued litigation about the rulemaking.

[00:04:24] Speaker 07:
But because of how the count on appeal was framed, the court said the order effectively terminated the action with respect to that count.

[00:04:32] Speaker 07:
And as to the second piece of it, which is the can this be appealed later?

[00:04:37] Speaker 07:
Yes, there may be future litigation about hip in general, but not the 2020 remand.

[00:04:44] Speaker 07:
And there's a chance that any future litigation about this may not even occur in this circuit if there is a denial on remand.

[00:04:51] Speaker 05:
But after the remand, if you want to appeal, you can appeal

[00:04:57] Speaker 05:
the new proceedings after remand, and you can also appeal the remand order that said it there.

[00:05:03] Speaker 05:
So I don't understand why you wouldn't be able to appeal this later.

[00:05:06] Speaker 07:
So I don't think that's true if there is a denial of the approval on remand, because Indiana would be entitled to challenge that in the southern or northern district of Indiana.

[00:05:17] Speaker 07:
Any appeals would go to the Seventh Circuit.

[00:05:19] Speaker 07:
And at that point, I think this action would likely be moved.

[00:05:23] Speaker 07:
There would be nothing further to do, nothing further that the district court could set aside.

[00:05:28] Speaker 05:
Precedent for that?

[00:05:28] Speaker 05:
Because I don't think that's the way it works.

[00:05:30] Speaker 05:
And I think we have precedents that say that you can challenge the remand order.

[00:05:33] Speaker 07:
So I think we cite a Seventh Circuit case in our brief.

[00:05:38] Speaker 07:
I think Travis is the name that says that when you have a new agency action, at least in the Seventh Circuit, they're going to consider the old agency action, any litigation about that moot.

[00:05:48] Speaker 07:
And I think that shows exactly the dilemma we are in.

[00:05:51] Speaker 04:
But I also just, I mean, it's not uncommon.

[00:05:58] Speaker 04:
And this happens often during presidential transitions that matters are sent back to agencies because the agency says, as I have here, we're going to look at this again.

[00:06:09] Speaker 04:
And especially if they say we're going to make a new decision as they have here.

[00:06:17] Speaker 04:
At a bare minimum, we would hold the case in abeyance rather than rule upon it because it's a waste for us to issue what everyone knows is going to be an advisory opinion on the lawfulness of agency action A when they've already said, forget about it.

[00:06:36] Speaker 04:
We're going to do agency action B.

[00:06:40] Speaker 04:
So I don't understand why we would spend the resources and then either they come out with a decision before we do, at which points it's all wasted, or we come out of it right before they do, at which point it's all wasted.

[00:06:56] Speaker 07:
Well, I think, Your Honor, that goes maybe to a prudential concern about whether you step briefing in a case or not, but not the issue of finality, which is determined at the time the agency action issues.

[00:07:05] Speaker 04:
Are you happy if we just hold it in abeyance?

[00:07:08] Speaker 04:
I don't know how that helps the concerns that you're raising, so it seems to me it gets to the practicality.

[00:07:14] Speaker 04:
You're talking about a practical effects doctrine here, and if it makes no sense for us to reach out and rule under the arguments that you're advancing, which simply sort of echo the problems with this remand rule,

[00:07:29] Speaker 07:
So I think, Your Honor, that would go to some of the practical concerns about what happens with, do you lose the chance to appeal at all?

[00:07:39] Speaker 07:
But I don't think it addresses other practical concerns.

[00:07:43] Speaker 04:
What do you think would happen to that appeal if we hold it in abeyance and then they issue a whole new decision?

[00:07:48] Speaker 04:
What are the chances we would then say, well, we still need to decide this or we wouldn't?

[00:07:53] Speaker 07:
Well, if it's denial, I think the court would need to decide this appeal because that is the... No, there's no point to that.

[00:08:01] Speaker 04:
It would get you nowhere.

[00:08:02] Speaker 04:
You would still have to do with denial B. It would do nothing to remedy your injury if we say,

[00:08:13] Speaker 07:
maybe they were wrong about denial a that it was actually perfectly lawful because they now have a whole new decision in place and then if there's a denial that litigation might not even occur in this court which means that i don't understand what the relevance of that point is well i think it goes to the district court's decision not being effectively reviewed including and i think this is significant your choice

[00:08:33] Speaker 04:
I mean, or the plaintiff's choice, whoever's choice it is.

[00:08:35] Speaker 04:
There's no guarantee that every district court decision ultimately gets reviewed if parties choose to challenge a subsequent agency action somewhere else.

[00:08:44] Speaker 04:
That's just how the world works.

[00:08:47] Speaker 07:
Well, Your Honor, I think that we're not saying that every ruling that might come in the course of a case can immediately be appealed, but rather, you know, one of the significant pieces about this is this is not just remit.

[00:09:01] Speaker 07:
It vacates the agency action.

[00:09:03] Speaker 07:
So there are going to be consequences.

[00:09:05] Speaker 05:
What rule are you actually asking us to adopt here?

[00:09:08] Speaker 05:
Are you saying that all remands that vacate agency action are not final?

[00:09:13] Speaker 05:
Because in general, remands are not final decisions.

[00:09:16] Speaker 05:
So what are you saying?

[00:09:16] Speaker 05:
Is it because Indiana is a state?

[00:09:18] Speaker 05:
Is it because any remand where an agency action is vacated is now final in your view?

[00:09:26] Speaker 05:
What exactly are you asking us to hold?

[00:09:28] Speaker 05:
So not just your case, this is going to affect a lot of other cases.

[00:09:32] Speaker 07:
So the rule that we think is that most accurately captures this is where there is a district court decision that vacates an agency action and the relevant count before this court is attacking that specific agency action.

[00:09:49] Speaker 07:
It is final and appealable.

[00:09:50] Speaker 05:
That is a very routine thing that happens in this court.

[00:09:53] Speaker 05:
So you're saying that all of these remands, any remand that vacates agency action is non-final.

[00:10:01] Speaker 05:
Even though it's being remanded, going back to the agency, there's going to be more stuff happening, but it's final.

[00:10:06] Speaker 05:
If it vacates the prior agency action, that's not final in every case in that posture.

[00:10:12] Speaker 07:
So I don't think so, Your Honor.

[00:10:14] Speaker 07:
And I think that's just the line between maybe the Pueblo of San Vista case and the American Great Lakes case is it depends on not just whether vacator occurs, but vacator and how the claimant issue is defined.

[00:10:27] Speaker 05:
So it depends on the remedy.

[00:10:28] Speaker 05:
It depends on vacator.

[00:10:29] Speaker 07:
They could or plus what is the scope of the claim that is at issue in here.

[00:10:34] Speaker 07:
The scope of the claim is specific to a particular action on a particular date, not everything that could be litigated about the HIP program.

[00:10:42] Speaker 05:
And I think, you know, to the very difficult for us to adopt and implement.

[00:10:47] Speaker 07:
Well, if there are concerns with that, I think we have a narrower fallback.

[00:10:52] Speaker 05:
I guess my question is, why would we do this?

[00:10:54] Speaker 07:
Well, I think one of the reasons is because specifically when we're talking about Medicaid, you have a state that is not an ordinary party.

[00:11:03] Speaker 05:
It's part of a Medicaid specific rule you're asking for.

[00:11:05] Speaker 07:
So I think if the court is uncomfortable with the broader rule I just proposed, it would be permissible to have a rule for cooperative federalism programs in which you have an agreement between two sovereigns and both are equally impacted by vacater of it.

[00:11:21] Speaker 07:
So I think that would be the narrow rule.

[00:11:24] Speaker 05:
But you're not equally impacted because you can still appeal later after the remand, whereas the government couldn't, the agency couldn't.

[00:11:33] Speaker 05:
That's the whole basis of the rules that we have in place.

[00:11:37] Speaker 07:
I think that as the dialogue, as Judge Millett illustrates, there is not a non-zero risk Indiana wouldn't be able to litigate this case to conclusion.

[00:11:45] Speaker 07:
And that's exactly what the government faces whenever it...

[00:11:48] Speaker 07:
you know, has a remand, it may well just issue a decision on remand that gets challenged and the government can then litigate the validity of its original action in any subsequent appeal.

[00:11:58] Speaker 07:
But there is no guarantee.

[00:12:00] Speaker 07:
And that is precisely the problem that we're trying to avoid when it comes to practical finality.

[00:12:05] Speaker 04:
Now, let me ask you about the practical finality.

[00:12:13] Speaker 04:
So if the district court had just remanded without vacatur, what's your position on jurisdiction?

[00:12:21] Speaker 07:
I think we'd be in a very different position.

[00:12:24] Speaker 04:
Of course you are.

[00:12:24] Speaker 04:
That's why I asked the question.

[00:12:26] Speaker 04:
I just want to know yes or no.

[00:12:27] Speaker 07:
So if it's remand without vacatur, I don't think we would be here.

[00:12:33] Speaker 04:
That's not a legal answer at all.

[00:12:36] Speaker 04:
Analyze finality under the test you wish us to apply in a scenario where the district court's decision was just a remand.

[00:12:45] Speaker 07:
So I think there, it depends on the scope of the claim.

[00:12:48] Speaker 07:
In this case, I still think there would be a final decision because the claim is specific to the 2020 approval.

[00:12:55] Speaker 07:
And so we're very much the situation as if the government wanted to appeal.

[00:12:58] Speaker 07:
There's no dispute.

[00:12:59] Speaker 07:
I don't think that that would be final and appealable.

[00:13:02] Speaker 07:
And so I think we are very much in the same position.

[00:13:05] Speaker 07:
Now, in terms of whether there is the same need to appeal, that may not be always the case.

[00:13:09] Speaker 04:
Indiana's decision on whether it needs to appeal.

[00:13:11] Speaker 04:
So your position doctrinally is not limited to vacature situation.

[00:13:19] Speaker 04:
And you say it's because there's a final resolution of a particular agency action, 2022 approval, which is going to happen 100% of the time

[00:13:37] Speaker 04:
there's a remand, there has to be a final decision on whatever is being remanded.

[00:13:43] Speaker 07:
So to be clear, I think this course established there's two branches of remand orders that are final.

[00:13:48] Speaker 07:
One is effectively terminates the action, and that doesn't depend on the remedy imposed.

[00:13:52] Speaker 07:
And the second is, is there a meaningful chance to appeal later?

[00:13:57] Speaker 07:
And that, I think, is where the vacater comes in.

[00:13:59] Speaker 04:
Effectively terminates the action is a really weird argument when there's a 54B certification that you sought, because the whole point of 54B is that

[00:14:10] Speaker 04:
the action is not effectively terminated, this particular claim or this claim is to this party is terminated and it makes no sense to wait for everything else.

[00:14:19] Speaker 07:
So I think, yes your honor, I think when I say effectively terminates the action, it's with respect to the claims on which the district court entered judgment.

[00:14:29] Speaker 04:
Okay well then that is 100% of remand

[00:14:33] Speaker 04:
orders because as to the judgment that's remanded, it will be a decision that there was error by the agency that warrants remand and action by the agency.

[00:14:48] Speaker 04:
That action cannot survive unless the agency fixes whatever problem was identified.

[00:14:55] Speaker 04:
So I think now we're back in the area Judge Penn was worried about of

[00:15:01] Speaker 04:
how we would distinguish this case in a way that wouldn't be now not just remands with vacatur, but 100% of remands.

[00:15:10] Speaker 07:
So I think that is the court's concern.

[00:15:13] Speaker 07:
What I would direct the court to is a more narrow rule that addresses this case is where you have vacant or of an agency action impacting a bilateral agreement between two sovereigns, either sovereign, the federal government, or the state can appeal.

[00:15:26] Speaker 04:
OK.

[00:15:26] Speaker 04:
And then I wanted to ask you,

[00:15:31] Speaker 04:
In that situation, I mean, you have put a lot of weight on vacature.

[00:15:35] Speaker 04:
I think for your narrower approach, that's what you're asking us to focus on.

[00:15:40] Speaker 04:
In this case, the district court has stayed its vacature order, not just during appeal, but during the remand proceedings.

[00:15:55] Speaker 04:
which is about as un-vacated a vacatur as I can conceive of.

[00:16:00] Speaker 04:
And you have pointed out in a letter, well, that there is no stay as to the power accounts.

[00:16:07] Speaker 04:
That's because you asked for that in your joint motion for a stay from the district court.

[00:16:13] Speaker 04:
You agreed to the power accounts not being stayed.

[00:16:19] Speaker 04:
So given that the vacatur has no practical operation,

[00:16:26] Speaker 04:
except in one capacity where you agreed a stay was not needed.

[00:16:33] Speaker 04:
What practical effect could we lean on here to say that this one should be treated as final?

[00:16:41] Speaker 07:
So I think when we're assessing finality, it's at the time the order is issued.

[00:16:46] Speaker 04:
No, that's not the court.

[00:16:48] Speaker 04:
This court's practice.

[00:16:49] Speaker 04:
We have assessed finality based on representations of oral argument.

[00:16:53] Speaker 04:
And we have that in an opinion.

[00:16:54] Speaker 04:
So that binds us.

[00:16:55] Speaker 07:
So I think that goes.

[00:16:58] Speaker 04:
If you're going to do a practical effects analysis, really, we're going to ignore the most relevant practical effects on which you're leaning on, the consequences of vacatur for a partner in a cooperative federal state agreement.

[00:17:10] Speaker 07:
So, Your Honor, to address that more directly, one is when the parties sort of agreed on the contours of a limited stay, it was without prejudice to either party's ability to seek further review.

[00:17:21] Speaker 04:
And second, the further review... If you've been allowed to seek further review, you surely cannot stipulate as to how we will decide any issue on that appeal.

[00:17:31] Speaker 04:
You need to know that going in.

[00:17:33] Speaker 04:
No, Your Honor, and that's precisely why there's- Your smart attorney, you were aware of the remand rule, so you knew what risks you were assuming.

[00:17:40] Speaker 07:
Well, Your Honor, and that goes precisely to the second piece, which is right now, Indiana cannot operate the cornerstone of its HIP program power account.

[00:17:49] Speaker 04:
It's the account because you agreed to not have those stayed.

[00:17:55] Speaker 04:
That's a you problem.

[00:17:59] Speaker 04:
the state of Indiana, not you personally, but that's an Indiana strategic tactical choice and litigation problem.

[00:18:07] Speaker 04:
It's also a little hard to call it the cornerstone when it hasn't functioned for five years.

[00:18:12] Speaker 04:
So maybe five and a half at this point.

[00:18:17] Speaker 04:
So I'm not sure what we're supposed to do with that.

[00:18:20] Speaker 04:
Are we supposed to relieve Indiana of its strategic

[00:18:23] Speaker 04:
litigation decision, and then use that as a basis for finding either a narrow or a broad exception to our remand finality rule?

[00:18:33] Speaker 07:
How we see the issue, Your Honor, is it goes, if at all, to mootness rather than finality.

[00:18:38] Speaker 07:
And the case is not moot because there's still a live dispute as to whether Indiana... What goes to mootness rather than finality?

[00:18:44] Speaker 07:
The stay goes to mootness rather than finality, in our view.

[00:18:48] Speaker 04:
I thought you wanted us to do a practical effects analysis.

[00:18:51] Speaker 04:
I mean, that's the only way we get into it.

[00:18:54] Speaker 04:
We can do it because that's where the exceptions to the remand finality rule are.

[00:18:59] Speaker 04:
They're practical effects analysis.

[00:19:01] Speaker 04:
And so I don't think it just goes to mootness.

[00:19:04] Speaker 04:
I think practical effects goes to the practical effects.

[00:19:07] Speaker 04:
And it's hard for you to lean on a practical effect is absolutely essential when you agreed you didn't need a stay of that.

[00:19:13] Speaker 07:
Well, there are still two practical effects.

[00:19:16] Speaker 07:
One is it's going to inform what the government does on remand in terms of the role it applies.

[00:19:21] Speaker 07:
And that's precisely what the government can use to appeal these types of orders.

[00:19:26] Speaker 04:
And secondly, the court's decision is going to inform what the agency does on remand.

[00:19:32] Speaker 07:
Correct.

[00:19:32] Speaker 04:
That's 100% of remands.

[00:19:35] Speaker 07:
And that is the exact situation which this court has held the federal government can appeal.

[00:19:40] Speaker 07:
And we think when there is a federal state agreement, the same rule should apply to the state as to the federal government.

[00:19:48] Speaker 05:
But why is that when you can still appeal and the federal government can't?

[00:19:51] Speaker 05:
I guess you had said in the Seventh Circuit, maybe you couldn't.

[00:19:55] Speaker 05:
But our case law says you can appeal the remand order.

[00:19:58] Speaker 05:
after the remand and it's your choice where you bring your appeal, right?

[00:20:03] Speaker 05:
So you can just appeal here and then you can appeal a remand order.

[00:20:09] Speaker 07:
One thing we can, and maybe this helps, is one thing that is, I think there's no dispute that no party can appeal after the remand, is the decision not just to remand, but to vacate the order for the duration of that remand.

[00:20:22] Speaker 07:
That has to be appealed now or not at all, because however long any remand takes, and this is true in any category of cases, the court can't undo the vacator for the period, for the years in which the remand in any subsequent district court litigation, any future appeals may take.

[00:20:39] Speaker 04:
But if it's a non-event vacator, which is what we have here, a state vacator, I don't even know what your injury is.

[00:20:53] Speaker 04:
I think you don't have to change anything you're doing in Indiana.

[00:20:58] Speaker 07:
We do, Your Honor.

[00:20:59] Speaker 07:
In order to continue operating HIPP without power accounts, the legislature had to enact a temporary piece of legislation that allowed continued operation.

[00:21:08] Speaker 04:
Was that this year or was that in 2020?

[00:21:10] Speaker 04:
2025.

[00:21:11] Speaker 07:
Okay.

[00:21:11] Speaker 04:
Well, so they've enacted the legislation, so we're good.

[00:21:15] Speaker 07:
No, Your Honor.

[00:21:15] Speaker 04:
But you hadn't been operating them for five years anyhow because of the pandemic.

[00:21:18] Speaker 04:
You haven't been operating.

[00:21:19] Speaker 04:
When's the last time you operated one of these power premiums?

[00:21:23] Speaker 07:
That was before COVID.

[00:21:24] Speaker 07:
And the whole reason that we didn't operate them during that time was temporary legislative changes.

[00:21:30] Speaker 04:
We're a lot of years past COVID.

[00:21:33] Speaker 04:
I mean, still with us, but COVID crisis pandemic.

[00:21:37] Speaker 04:
And Indiana still chose not to reinstate these power premiums.

[00:21:44] Speaker 07:
Your Honor, we could not under the terms of an enhanced federal funding package.

[00:21:49] Speaker 04:
That's a choice.

[00:21:51] Speaker 04:
That's a choice.

[00:21:52] Speaker 04:
Indiana can say no to money.

[00:21:54] Speaker 07:
Certainly.

[00:21:55] Speaker 07:
And the agreement was, we will not reinstate them while during COVID and any re-determination period, not forever.

[00:22:00] Speaker 07:
And now we're in the situation of asking, is this a forever thing or is this just a temporary COVID era, I think?

[00:22:08] Speaker 04:
OK.

[00:22:08] Speaker 04:
And you have said, Indiana made the choice that, well, we'll keep doing what we've been doing, no power accounts.

[00:22:17] Speaker 04:
while this litigation goes forward and the case is remanded.

[00:22:21] Speaker 04:
So Indiana has already made the choice.

[00:22:24] Speaker 04:
I feel like I'm repeating myself here that we can do just fine without, maybe it's not our ideal dream, but we can do just fine operating our program as we have for the last five years until the remand is over.

[00:22:42] Speaker 04:
At which point,

[00:22:45] Speaker 04:
It's up to HHS what they want to do about these power premiums.

[00:22:48] Speaker 04:
And if it's going to, you say, influence their decision, then you will have an argument if it influences it in a way you don't like.

[00:22:56] Speaker 04:
You don't want to argue about this one here.

[00:22:57] Speaker 04:
You're going to want to argue about the operative decision and say, what were they doing?

[00:23:02] Speaker 04:
They were listening to this, in your view, erroneous district court decision.

[00:23:08] Speaker 04:
And it's arbitrary and capricious for them to have done whatever they do.

[00:23:11] Speaker 04:
That will be your argument.

[00:23:12] Speaker 04:
Or they will make a decision and you will be happy as a clam.

[00:23:17] Speaker 04:
And Indiana will have nothing to complain about.

[00:23:20] Speaker 07:
Well, I think, Your Honor, that question gets to one of the lingering factual effects.

[00:23:24] Speaker 07:
It is a world of difference under an arbitrary and capricious deferential framework, whether you are the party challenging the decision or whether you are the party defending it.

[00:23:32] Speaker 07:
Here, we're the party defending it.

[00:23:34] Speaker 07:
If there's a new adverse decision, Indiana would be the party challenging it.

[00:23:37] Speaker 04:
Here's the one where you are challenging it.

[00:23:39] Speaker 04:
You want this litigation to go forward where you have to challenge.

[00:23:41] Speaker 04:
I assume you'd be happier to defend on the next round if you like the agency's decision.

[00:23:46] Speaker 07:
Well, to be clear, I'm talking about there's a difference between challenging the agency decision, not the district court decision.

[00:23:56] Speaker 04:
OK, but it's applying the same arbitrary and capricious review that we do.

[00:24:00] Speaker 07:
But as this is a deferential standard, if you were the party challenging the 2020 approval or?

[00:24:09] Speaker 04:
I don't disagree that you're happier.

[00:24:12] Speaker 04:
as an appellee or respondent in any of these types of cases.

[00:24:16] Speaker 04:
But I'm not sure that's a justification for finality.

[00:24:20] Speaker 04:
Can I ask you a fact question?

[00:24:22] Speaker 04:
Absolutely, Your Honor.

[00:24:24] Speaker 04:
How many folks in Indiana are enrolled in the HIP program?

[00:24:29] Speaker 04:
Obviously, you aren't going to have.

[00:24:31] Speaker 04:
I assume you won't.

[00:24:31] Speaker 04:
I'll be very impressed if you have the precise number today, but just roughly.

[00:24:35] Speaker 07:
I think roughly about 600,000.

[00:24:37] Speaker 07:
OK.

[00:24:38] Speaker 04:
OK.

[00:24:39] Speaker 04:
All right.

[00:24:41] Speaker 04:
And do you know what the current status of your application for another five-year extension on the substance use disorder mental health program is?

[00:24:50] Speaker 07:
It's still pending, Your Honor.

[00:24:52] Speaker 07:
OK.

[00:24:52] Speaker 04:
OK.

[00:24:56] Speaker 04:
Can I ask you, I don't know if my colleagues have other questions?

[00:24:59] Speaker 04:
I have another question, but please finish.

[00:25:04] Speaker 04:
While HIP2 has 2.0, I guess you call it, has been in effect,

[00:25:11] Speaker 04:
How many individuals have been either denied involvement so they couldn't make an upfront premium payment or have been kicked out for not making premium payments?

[00:25:26] Speaker 07:
So when we're answering that question, we have to distinguish between two periods of time.

[00:25:32] Speaker 07:
One is between 2015 and 2018, in which there was a different version of HIP, and then from 2018 to 2020 before COVID derailed everything.

[00:25:41] Speaker 07:
Because in 2018, the state made a couple of changes to simplify power accounts and to recalculate how contributions are done such that for most people, it dropped substantially.

[00:25:56] Speaker 04:
But I just would like to know the total amount of people that have been kicked off.

[00:26:01] Speaker 07:
So before the 2020-11 report notes, I think there were in the 2018 to 2019 period, there were about 5,000 that were kicked off.

[00:26:12] Speaker 07:
And that's about 1.4% of the total hit population.

[00:26:16] Speaker 04:
5,000 kicked off.

[00:26:18] Speaker 04:
But how many tried to enroll but couldn't?

[00:26:20] Speaker 04:
Because I take it you have to pay a premium to actually get your first premium to get enrolled.

[00:26:24] Speaker 07:
Yeah, so for the 2018 to 2019 period, there is no data on how many people did not enroll for because of the contributions.

[00:26:35] Speaker 07:
But that was precisely one of the things that the 2020 report noted would need to be studied going forward, because you couldn't rely on 20.

[00:26:41] Speaker 04:
It's a long time since 2019, so what's the study results?

[00:26:44] Speaker 04:
How many people?

[00:26:45] Speaker 07:
So the 2019 to 2020 data is not in is I'm not aware of anything in the record that specifically addresses how many people tried to, you know, were interested in rolling, but did not.

[00:26:58] Speaker 04:
But if you look at page 18 to 2020 is what I'm interested.

[00:27:02] Speaker 04:
You said you were going to do a study of that.

[00:27:03] Speaker 07:
So we cover that.

[00:27:04] Speaker 07:
If you look at page 1037 of the joint appendix, it provides the data on how many people were disenrolled in that period for failure to make contributions.

[00:27:14] Speaker 07:
It was 5,500 members.

[00:27:17] Speaker 07:
That's against a population of about, I think it was about 50, you know, over 500,000 at that time.

[00:27:24] Speaker 07:
5,500 were disenrolled for failure to make contributions.

[00:27:31] Speaker 04:
So 5,500, I had 5,000 from you.

[00:27:32] Speaker 04:
OK.

[00:27:33] Speaker 04:
But we still don't have, you don't have the number or it's just not in the record.

[00:27:37] Speaker 04:
But Indiana does have a number for how many people were rejected from enrollment.

[00:27:42] Speaker 07:
It's not in the record and I'm not aware of.

[00:27:45] Speaker 04:
I thought you said they were doing a study.

[00:27:48] Speaker 07:
No, the report indicated that that data would need to be analyzed.

[00:27:52] Speaker 07:
I'm not aware of whether the report actually was completed with respect to that data category.

[00:28:00] Speaker 04:
Is there any reason to think it's lower than the 5G500?

[00:28:04] Speaker 04:
This seems really, I mean, really, I just, really, you're doing this program in which enrollment is an absolutely essential feature and you're not keeping track of how many people are not allowed to enroll because of your, this was a whole point of the experiment, is to test how this works.

[00:28:26] Speaker 04:
And so you have to know how many people, not you personally again, but you have to know

[00:28:32] Speaker 04:
how many people couldn't enroll because of the requirement to pay premiums.

[00:28:40] Speaker 04:
Otherwise, this isn't an experiment at all.

[00:28:42] Speaker 04:
And that's a whole nother reason for HHS to be concerned about reauthorization.

[00:28:49] Speaker 07:
So your honor, I think part of this is a timing issue.

[00:28:52] Speaker 07:
The 2020 report comes out in April of 2020, at which point there is no longer premiums being charged.

[00:28:59] Speaker 07:
And it's sort of analyzing retrospectively data from 2018 and 2019.

[00:29:03] Speaker 07:
I am not aware of whether there was a survey conducted in 2018, 2019 before COVID interrupted things as to whether people

[00:29:12] Speaker 07:
wish to enroll but did not because of premiums.

[00:29:15] Speaker 07:
The only data we have from that is for 2018 in which at which point Indiana made significant changes to the power account structure to lower premiums.

[00:29:24] Speaker 04:
Not the practice of refusing to enroll people who couldn't pay premiums.

[00:29:27] Speaker 04:
That did not change.

[00:29:30] Speaker 07:
Correct, Your Honor.

[00:29:30] Speaker 07:
That did not change.

[00:29:32] Speaker 04:
What are the pre 2018 statistics?

[00:29:35] Speaker 07:
So pre-2018, and if you look at, the secretary talks about this on page 856 of the joint appendix, that there was 3.1% did not enroll for failure to make, or were disenrolled for failure to make contributions in 2016.

[00:29:52] Speaker 07:
That went down to 2.2% in 2018.

[00:29:53] Speaker 04:
How many were not allowed to enroll in the first place?

[00:29:56] Speaker 07:
I think one survey had a number of about 26,000 over a, I think, 18-month period.

[00:30:04] Speaker 04:
OK.

[00:30:05] Speaker 04:
But, and that survey is a Indiana report.

[00:30:09] Speaker 07:
Something to commission it was an evaluation.

[00:30:12] Speaker 07:
Yes.

[00:30:14] Speaker 04:
Okay.

[00:30:15] Speaker 04:
Okay.

[00:30:15] Speaker 05:
I'm sorry.

[00:30:17] Speaker 05:
So, on the question of.

[00:30:20] Speaker 05:
whether you would have the opportunity to appeal the remand order after the remand.

[00:30:27] Speaker 05:
I had asked you about that because our case law says that you most certainly can do that.

[00:30:31] Speaker 05:
And you had responded that the thing that's actually final is the vacator.

[00:30:38] Speaker 05:
And it just seems to me that if the thing that's final is the vacator, why would you get to actually challenge the remand order, which is what you're trying to do here.

[00:30:47] Speaker 05:
And on the vacator order, we have a whole sort of set of legal standards for vacator.

[00:30:55] Speaker 05:
And in this case,

[00:30:58] Speaker 05:
was arguments about disruption, et cetera, which is certainly something that should be considered.

[00:31:03] Speaker 05:
And the district court considered that and stayed the vacator.

[00:31:06] Speaker 05:
So it just seems to me, number one, you're here trying to appeal the remand order when the only thing that you're actually saying is final is the vacator.

[00:31:15] Speaker 05:
But in this particular case, the vacator has no real effect.

[00:31:21] Speaker 05:
So any arguments you would have had about

[00:31:25] Speaker 05:
vacating vacator, just really carry no water here because it's all been stayed.

[00:31:31] Speaker 07:
So there's not a separate remand and vacator order, Your Honor.

[00:31:34] Speaker 07:
They are part of the same order.

[00:31:35] Speaker 07:
It vacates and remands.

[00:31:37] Speaker 07:
As to the practical effects, we do think that the unable to appeal later, that's one branch of this court's cases, and that's where the vacator is significant.

[00:31:47] Speaker 05:
But you have to meet that standard.

[00:31:48] Speaker 05:
And so I guess there's two parts of it for you, one being that you're conceding that you can appeal a remand order later.

[00:31:55] Speaker 05:
I guess you have to concede that.

[00:31:57] Speaker 05:
because that's our case law.

[00:31:58] Speaker 05:
So the only thing you're relying on is the vacator, but the vacator's been stayed.

[00:32:02] Speaker 07:
It's been partly stayed, Your Honor.

[00:32:04] Speaker 05:
And then as to the... But as you said, the only reason it's partial is because that's what you asked for.

[00:32:08] Speaker 07:
Yeah.

[00:32:09] Speaker 07:
But I think that's only one branch of the cases.

[00:32:11] Speaker 07:
The other is, does it resolve this distinct claim in a way that... But you have to meet both.

[00:32:16] Speaker 07:
I think these are two separate cases, lines of cases.

[00:32:20] Speaker 07:
On the one hand, you have cases like long distance telephone exchange which is talking about can you appeal later or not in cases that allow the government to appeal.

[00:32:31] Speaker 07:
when a private party might not be able to.

[00:32:33] Speaker 07:
And then you have the branch of cases like the American Great Lakes case, where all the parties agreed there would be future remand proceedings on the very rule that the plaintiffs were challenging.

[00:32:44] Speaker 07:
But this court said that the plaintiffs could appeal in that case because with respect to part of the rule, there wouldn't be significant future proceedings with respect to that piece.

[00:32:55] Speaker 07:
And that's where we are here.

[00:32:56] Speaker 04:
There's no correction for the agency to act in the Great Lakes case.

[00:32:59] Speaker 04:
There's no direction for them to act and no reason to think that they were gonna act.

[00:33:02] Speaker 04:
We got the antithesis of this here because the agency has said, we're on it.

[00:33:07] Speaker 04:
We're gonna issue a new decision.

[00:33:09] Speaker 07:
So Your Honor, I think that may just go to how you're defining the claim.

[00:33:14] Speaker 04:
Which means it doesn't like American Great Lakes.

[00:33:15] Speaker 04:
It doesn't fall within that accepted.

[00:33:17] Speaker 07:
But I think, and this maybe just brings back to, I think, what is the narrowest way to resolve that when you have an order that remands or vacates and remands either way, that an agency that's an agreement between two sovereigns, the federal government in the states, either party of the states or the federal government can appeal.

[00:33:39] Speaker 04:
even when the two sovereigns agreed to have it stayed?

[00:33:42] Speaker 07:
Yes, Your Honor.

[00:33:45] Speaker 04:
I think we've kept you up a little bit longer.

[00:33:46] Speaker 04:
Thank you so much.

[00:33:47] Speaker 04:
We'll give you some time for rebuttal.

[00:34:04] Speaker 06:
May I please record Maxwell Baldy for the Federal Appellees.

[00:34:08] Speaker 06:
My friend offered, I think, four different potential rules for why this case might be appealable now, why there might be pellet jurisdiction.

[00:34:16] Speaker 06:
I don't think any of them work, but I want to talk through them.

[00:34:20] Speaker 06:
The first was the idea that if there is vacatur and final resolution of a claim,

[00:34:24] Speaker 06:
But this case has a lot of, this court has a lot of cases.

[00:34:28] Speaker 06:
Pueblo Sandy is a great example where there's vacatur and remand and there's still no appellate jurisdiction because that is inherently an interlocutory order and it can come back and be resolved and the remand order will merge into the final judgment.

[00:34:41] Speaker 04:
Why isn't it?

[00:34:45] Speaker 04:
We have this strange exception that the government can appeal.

[00:34:49] Speaker 04:
for practical reasons, it doesn't become any more final when it's the government versus Indiana appealing.

[00:34:55] Speaker 04:
But in the area of these cooperative state federal programs where essentially what has been invalidated is a contractual agreement between the government and the state,

[00:35:10] Speaker 04:
And so the state's half of that contract is just as much broken as the federal government's.

[00:35:18] Speaker 04:
And if you had true actual vacatur in effect, you know, you all are making your decision making, but you could have a state that's left with no Medicaid program, and it's going to have to deal with that.

[00:35:37] Speaker 04:
while the remand is ongoing before the agency.

[00:35:41] Speaker 04:
And that would be extraordinarily disruptive.

[00:35:47] Speaker 04:
And you could halt a Medicaid program, could throw it into turmoil.

[00:35:51] Speaker 04:
Why wouldn't, if we had actual vacatur effects in a case involving, so you'd have to have a remand with vacatur,

[00:36:01] Speaker 04:
there'd have to actually be vacator effects, and it involves a cooperative state federal program where what is vacated is the contractual arrangement.

[00:36:13] Speaker 04:
Why wouldn't it make just as much sense to allow

[00:36:18] Speaker 04:
the state whose ox really is deeply gored in that situation to appeal just as much as the US government, because whatever they appeal they can have later, they will have dealt with a year or two of having to completely reorder and revamp their entire system or just not have Medicaid for a year or so.

[00:36:38] Speaker 06:
Yeah, let me address that in two parts.

[00:36:41] Speaker 06:
First, through the premise that Indiana might not have Medicaid, they would still have a state Medicaid plan.

[00:36:45] Speaker 06:
They would not be able to run their demonstration program.

[00:36:47] Speaker 06:
And there might be features under state law that require them to change some things.

[00:36:51] Speaker 06:
But I don't think it's accurate to say that Medicaid would disappear in Indiana.

[00:36:58] Speaker 04:
Maybe I'm wrong.

[00:36:59] Speaker 04:
If you have a demonstration program, at least one like here that is what made the whole expansion possible,

[00:37:09] Speaker 04:
That's a lot of change.

[00:37:11] Speaker 04:
Let's assume their basic plan would just go forward.

[00:37:16] Speaker 04:
There's still tens of thousands, maybe 100,000 people that are thrown off in their view.

[00:37:26] Speaker 04:
Again, assuming there are actual vacatur here.

[00:37:30] Speaker 04:
Let's imagine a different state, an actual vacatur order that's not stayed.

[00:37:35] Speaker 04:
And as a result, 100,000 people who have been able to receive Medicaid under the experimental program will immediately be thrown off when that experiment goes away.

[00:37:45] Speaker 04:
they appeal to or not?

[00:37:46] Speaker 06:
I think that would be a compelling reason for the district court to remand without vacatur or to stay a vacatur order.

[00:37:52] Speaker 04:
But if that hasn't happened, why aren't they?

[00:37:56] Speaker 04:
This is a practical effects.

[00:37:58] Speaker 04:
The only reason the government gets appeal is practical effects.

[00:38:01] Speaker 04:
And so why not?

[00:38:02] Speaker 06:
I'm not quite sure that's true.

[00:38:04] Speaker 06:
So in Pueblo of Sandia, this court described the rule that the government gets to appeal, and that exception is an application of the collateral order doctrine.

[00:38:12] Speaker 06:
It said remand rules as a category are not final.

[00:38:15] Speaker 06:
But because there's an asymmetry, the federal agency gets to appeal because there's no way for it to take the case back to court.

[00:38:24] Speaker 04:
It's just definitely not meeting the Cohen factors, because it is not separable from the merits.

[00:38:29] Speaker 04:
It is the merits that you are appealing.

[00:38:32] Speaker 06:
No, what's being appealed on remand is this question of what standard we need to apply or what additional explanation we need to apply.

[00:38:41] Speaker 04:
The merits of the case.

[00:38:43] Speaker 04:
This is count one in the case.

[00:38:45] Speaker 04:
If you had chosen to appeal on the merits, then you would be arguing the merits, the district court's decision, and of the ruling on count one of the complaint.

[00:39:00] Speaker 04:
Would you not?

[00:39:01] Speaker 04:
In fact, you have done that in your brief here.

[00:39:03] Speaker 06:
I understand what you're saying.

[00:39:06] Speaker 06:
I can't change the analysis that this court has in its precedent.

[00:39:09] Speaker 04:
I get that.

[00:39:11] Speaker 04:
That's on us.

[00:39:12] Speaker 04:
But I don't know that we can sort of say Indiana's out just by looking at Cohen factors.

[00:39:18] Speaker 06:
So then I would point to, if you're talking about the practicality and you're looking at why

[00:39:26] Speaker 06:
The rationale for why the federal government gets to appeal here is not that it has, it's that it's sovereign or that it has particularly strong interest or that there would be particular effects.

[00:39:38] Speaker 06:
The rationale is done sort of on a categorical, not case by case basis.

[00:39:42] Speaker 06:
And it's based on the idea that the agency can't challenge its own acts complying with the remand order.

[00:39:47] Speaker 06:
So if the agency thinks on remand, it's been instructed to do something contrary to the statute.

[00:39:51] Speaker 06:
It has to comply with that order, and it reaches a new decision and puts it out.

[00:39:59] Speaker 06:
It might just be stuck with that.

[00:40:01] Speaker 06:
No other party brings that to court.

[00:40:03] Speaker 05:
Can we separate the vacature from the substance of the remand order?

[00:40:07] Speaker 05:
Why doesn't a vacature order meet the Cohen factors?

[00:40:10] Speaker 05:
It's conclusive, it resolves an important question if thousands of people are going to be thrown off Medicaid, and it's effectively unreviewable on appeal.

[00:40:19] Speaker 05:
Why can't a vacature order be appealed?

[00:40:22] Speaker 06:
I don't think it's accurate to say that it's effectively unreviewable on appeal.

[00:40:26] Speaker 06:
All interlocutory orders emerge into a final judgment.

[00:40:30] Speaker 05:
It's effectively unreviewable because once you vacated it, by the time you come back after remand, all these people have lost their

[00:40:37] Speaker 06:
So I would look to the example of a preliminary injunction, which Congress had to create a separate provision.

[00:40:44] Speaker 06:
It needed 1292A to make preliminary injunctions appealable.

[00:40:48] Speaker 06:
It wasn't just they fit into 1291 because they're effective.

[00:40:53] Speaker 06:
The effect of the preliminary injunction halting some action during the pendency of litigation is likely final.

[00:40:58] Speaker 05:
I think preliminary injunctions are hard to fit under a colon.

[00:41:00] Speaker 05:
I'm just saying, why don't vacancy orders fit under a colon?

[00:41:02] Speaker 06:
Well, I'm saying I think they're

[00:41:04] Speaker 06:
In many ways, they're analogous, right?

[00:41:06] Speaker 05:
It's a coercive order telling... Well, preliminary injunctions deal with the merits, whereas a vacatur order has a sort of a different set of legal things that are more based on practical effects.

[00:41:16] Speaker 05:
It's like the allied signal test is not based on the merits of the action, whereas preliminary injunctions are.

[00:41:23] Speaker 05:
So it's separable.

[00:41:24] Speaker 05:
It's an important question separate from the merits.

[00:41:27] Speaker 06:
So if we were to look at this sort of order, which in the same sentence or two sentences in a row vacates and remands, what I would say is that you look at cases where you have vacatur and remand, like Pueblo Sandia, and the court has reached the same result and said that these are separate

[00:41:51] Speaker 06:
the fact that there's sort of two dispositions doesn't change the fact that it is a remand order.

[00:41:58] Speaker 05:
And here's the argument there that the vacature has all the effects that this one does.

[00:42:06] Speaker 06:
I mean, in that case, I guess we would have to look at this.

[00:42:10] Speaker 05:
If it's Cohen, it would have to be categorical.

[00:42:11] Speaker 05:
So we would have to say vacature orders are a category of things.

[00:42:15] Speaker 05:
Right.

[00:42:17] Speaker 05:
it's important that we allow.

[00:42:19] Speaker 06:
And that's another reason why I think the cooperative federalism idea doesn't work, because that's sort of being party-specific, and it's specific to the equities of a case.

[00:42:27] Speaker 06:
Again, a great reason to stay a vacator or to not vacate, but not necessarily sort of the categorical analysis that wouldn't just open up a whole wide swath of orders coming up every time.

[00:42:38] Speaker 04:
Is tactical finality different or the same as Cohen?

[00:42:41] Speaker 04:
Because we've already talked about you've got a huge problem, if the government even appealing, if we have to go through the Cohen factors.

[00:42:47] Speaker 04:
I don't know that the Supreme Court has said that's how we look at practical finality.

[00:42:53] Speaker 04:
But maybe you've got a better read on it.

[00:42:57] Speaker 06:
So I mean, I think we don't go through it in every case because this court has just said as a category, this exception exists.

[00:43:05] Speaker 06:
And if we were to litigate it from first principles.

[00:43:09] Speaker 04:
I think there's 0% of times where the government appealing the merits of the district court's decision would be separable from the merits.

[00:43:18] Speaker 06:
Let me give you an example that I think might work.

[00:43:21] Speaker 06:
So take a case where you have, take a FOIA case where there's an issue of adequacy of the search and it's remanded for a new search and the government appeals.

[00:43:33] Speaker 06:
That is not the ultimate merits question of whether the government has disclosed documents properly, made proper withholding.

[00:43:39] Speaker 06:
It's a question of sort of this

[00:43:41] Speaker 06:
partial question of what sort of search needs to be done.

[00:43:44] Speaker 06:
It's not a final resolution.

[00:43:44] Speaker 04:
That's the merits issues we decide in FOIA cases all the time.

[00:43:47] Speaker 06:
It is a merits issue, but it's not a sort of the final end-all-be-all merits question, right?

[00:43:52] Speaker 06:
You would still have a whole lot of other analysis in a FOIA case.

[00:43:56] Speaker 04:
And I'm suggesting that... And has someone ever said we look... I'm not even sure how we decide what the final be-all-end-all question is, because the answer to what documents you get is going to depend on what process the agency did or is supposed to do.

[00:44:10] Speaker 04:
So I'm not sure I understand that test.

[00:44:14] Speaker 04:
Um, I'm just actually more doctrinal quiet.

[00:44:19] Speaker 04:
I know this is, this is, I mean, I've all been wrestling with this, I think, but, um, I just, it seemed like your approach was that there is no practical finality doctrine.

[00:44:30] Speaker 04:
There's finality and there's color.

[00:44:33] Speaker 04:
Um, and okay.

[00:44:34] Speaker 04:
So, so if there is, so if, are there three categories or two, is it finality Cohen, practical finality or just to, I think,

[00:44:42] Speaker 06:
You can look at finality in a practical way.

[00:44:44] Speaker 06:
And there are cases where the kind of cases where courts wrestle with practical finality are things like the court has resolved most of the case, but there's a lingering fees issue.

[00:44:54] Speaker 06:
And there's been any number of Supreme Court cases trying to figure out what sort of fees qualify.

[00:44:59] Speaker 06:
There are Supreme Court cases about when they review state court judgments and the state Supreme Court sends it back to the state trial court for entry of judgment.

[00:45:08] Speaker 06:
And the state court has said that's practically final.

[00:45:10] Speaker 06:
I don't think that's the sort of circumstance we have here

[00:45:12] Speaker 06:
Again, the district court resolved very little here.

[00:45:17] Speaker 06:
It certainly said that the approval wasn't adequately justified, that the secretary didn't look at the data and explain his decision in enough depth.

[00:45:30] Speaker 06:
But the district court also said,

[00:45:32] Speaker 06:
I'm not looking to the reasonableness of the decision.

[00:45:35] Speaker 06:
I'm not looking to the underlying data.

[00:45:37] Speaker 06:
I'm reaching this decision solely on the basis that there's just not enough here in this explanation.

[00:45:42] Speaker 06:
Go back and try again.

[00:45:43] Speaker 06:
And the agency has said that it will go back and reevaluate it.

[00:45:50] Speaker 06:
you know, I think it's a classic remand.

[00:45:53] Speaker 06:
And to the extent that we're talking about the practical finality in this case by itself, I think, Judge Mullett, as you pointed out, the stay of the vacator does a lot of work there because there really aren't practical effects other than the ability to charge premiums for power accounts and hit plus.

[00:46:10] Speaker 01:
Can I just ask you to clarify what you think the rule is that our case is announced?

[00:46:18] Speaker 01:
You're basically saying that, and this might be right, the practical consequences, bad, good and different, are just irrelevant to the question of appealability.

[00:46:30] Speaker 01:
The question is just, can you appeal after further proceedings on remand?

[00:46:35] Speaker 01:
And that's the end of the story.

[00:46:36] Speaker 06:
I think that is correct for the appealability of a remand order.

[00:46:40] Speaker 06:
The exceptions that exist are the government, the federal agency that rendered a decision can appeal because it would have no other opportunity to seek judicial review.

[00:46:51] Speaker 06:
That's Sierra Club and Occidental Petroleum.

[00:46:53] Speaker 06:
there's the exception for when the only task left is ministerial.

[00:46:59] Speaker 06:
You know, there's a remand with sort of instructions, there's nothing left to do.

[00:47:02] Speaker 06:
But I don't think that... Yeah, so we also have this stray... I understand that.

[00:47:10] Speaker 01:
We also have this language in our cases suggesting that it's okay because the party who's appealing now can appeal the remand order later.

[00:47:20] Speaker 01:
And it seems to me it's really hard to understand in practical terms what that means in a case like this.

[00:47:26] Speaker 01:
This doesn't mean necessarily this becomes appealable, but anytime you remand for more explanation, and then the agency gives a new explanation and either grants or denies what the party wants,

[00:47:40] Speaker 01:
They're not going to appeal and in this case come back and say, well, don't worry about why they denied it in 2026.

[00:47:48] Speaker 01:
They gave enough reasons in 2020.

[00:47:49] Speaker 01:
There's no way we would approach that case that way, would we?

[00:47:52] Speaker 06:
Well, so the district court's analysis binds the agency.

[00:47:57] Speaker 06:
The agency can't go back and say, we're going to ignore your order.

[00:48:02] Speaker 01:
And later Indiana can't come to court and say, don't worry about anything that happened on remand.

[00:48:08] Speaker 01:
You just need to rule that the district court in 2024 was wrong.

[00:48:14] Speaker 01:
The initial approval was okay and forget everything else that happens.

[00:48:17] Speaker 06:
That's correct.

[00:48:18] Speaker 06:
But Indiana can say in that challenge, the agency's decision in

[00:48:24] Speaker 06:
Imagine that it went back to the agency and the agency rejected the application.

[00:48:28] Speaker 06:
Indiana could bring it back to court and say, you know, we think that the agency was wrong to challenge it, but it could also on appeal say the agency flipped its position and got it wrong because it was bound by this faulty remand order where the governing legal rule that it was required to apply was wrong.

[00:48:44] Speaker 04:
That's how it brings it back to court.

[00:48:45] Speaker 04:
The flipping position doesn't make the agency wrong.

[00:48:48] Speaker 06:
No, but yes, and I'm just suggesting that the option be open to Indiana to argue that the agency was boxed boxed in by this rule of decision that was simply wrong.

[00:49:00] Speaker 06:
And that's what it applied.

[00:49:03] Speaker 06:
My only point is that these questions can come back to court.

[00:49:05] Speaker 06:
That is the point.

[00:49:06] Speaker 04:
Really, that one can't.

[00:49:08] Speaker 04:
The point is, as Judge Christie was saying, is that if we come up here on a new decision where the agency has done a whole bunch of analysis and given an ideal reasoned explanation for a decision to disapprove, we wouldn't say,

[00:49:26] Speaker 04:
you have to approve.

[00:49:28] Speaker 04:
All we would say is, well, was that reason?

[00:49:30] Speaker 04:
Even if the prior one was perfectly reasoned as well and the district court was wrong, that really doesn't matter, does it?

[00:49:39] Speaker 04:
As long as the decision before us is reasoned.

[00:49:42] Speaker 06:
So let me take an example from this case where the district court, I want to be careful to not

[00:49:49] Speaker 06:
box and how the agency interprets the district court's order, but I think there's a way to read the district court's order to say that the agency shouldn't be looking to health effects.

[00:49:56] Speaker 06:
I'm not trying to take a position whether that's what in fact says.

[00:50:03] Speaker 06:
Secretary would enter a new decision and say, well, I can't consider health effects under the terms of the remand order, and therefore I don't think there's enough here to enter an approval.

[00:50:12] Speaker 06:
That's the sort of thing that Indiana could challenge.

[00:50:15] Speaker 06:
But yes, with every case that is remanded, to get a new decision, to get further explanation for additional proceedings,

[00:50:23] Speaker 06:
there is a new decision and you will look to that decision.

[00:50:26] Speaker 01:
But you're basically saying if there's a wrong legal issue that the district court determined that guides the remand, then Indiana will be able to challenge that.

[00:50:35] Speaker 01:
That's correct.

[00:50:36] Speaker 01:
That's correct.

[00:50:36] Speaker 01:
You know what they also could have done is ask for a 1292B certification if there actually were a controlling question of law in this case like that.

[00:50:44] Speaker 06:
Yes, that is the mechanism Congress created for this type of issue.

[00:50:51] Speaker 04:
Can I ask you two questions, one just factual?

[00:50:54] Speaker 04:
Do you know what the status of HHS's review on the remand is or if there's any, may not, but if there's any rough timetable or anything like that?

[00:51:04] Speaker 06:
So I know that it is before them and I understand that at the moment they are waiting to see how this plays out.

[00:51:13] Speaker 06:
I'm not representing that they won't act because they haven't told me what they're going to do one way or another.

[00:51:17] Speaker 04:
Are they acting on waivers during the shutdown at all?

[00:51:20] Speaker 06:
Uh, I don't believe so, but I actually, so they're waiting for two things.

[00:51:25] Speaker 04:
Okay.

[00:51:26] Speaker 04:
Do you have more questions?

[00:51:30] Speaker 04:
Um, I, I had, I was really curious about the, about two thirds of your brief are spent on the merits.

[00:51:40] Speaker 04:
Arguing that if we do find jurisdiction, we should vacate the district court's order.

[00:51:48] Speaker 04:
Did you guys file a notice of appeal?

[00:51:51] Speaker 04:
I'm assuming you and the Justice Department are acutely aware of boundless precedent from the Supreme Court and this court, holding that a party that wishes to change the judgment of the district court has to either file a notice of appeal or cross-appeal?

[00:52:07] Speaker 06:
Yes, Your Honor.

[00:52:08] Speaker 04:
It has to get that filing approved and authorized by the Solicitor General?

[00:52:13] Speaker 04:
The Solicitor General authorized that part of your brief?

[00:52:15] Speaker 06:
The Solicitor General has reviewed the brief, yes.

[00:52:18] Speaker 04:
Has the Solicitor General authorized an appeal?

[00:52:20] Speaker 06:
No, the government did not appeal.

[00:52:23] Speaker 04:
Then you can't.

[00:52:24] Speaker 04:
Why is that?

[00:52:25] Speaker 04:
What is your rationale for why that argument is there without filing an appeal, notice of appeal?

[00:52:29] Speaker 06:
So, Your Honor, the government is not seeking to invoke this court's jurisdiction to disturb the judgment of the district court.

[00:52:40] Speaker 04:
That's a conclusion of your brief?

[00:52:42] Speaker 06:
What we are saying is that if you were to reach the merits, that we are presenting our views on the property.

[00:52:47] Speaker 04:
You said it's if we find jurisdiction.

[00:52:49] Speaker 06:
Yes.

[00:52:50] Speaker 06:
If you find jurisdiction, if some party has invoked the jurisdiction of the court.

[00:52:53] Speaker 04:
And you had to file a conditional cross-appeal.

[00:52:57] Speaker 04:
I mean, we've had held, Supreme Court's held, 100 times.

[00:53:01] Speaker 04:
A party can't stand there at that podium and ask us to change the district court's judgment without filing a notice of appeal or cross-appeal or petition, whatever the case may be.

[00:53:10] Speaker 04:
And you don't get around that.

[00:53:12] Speaker 04:
This isn't an alternative ground for affirmance that you're advocating.

[00:53:17] Speaker 04:
And if the Solicitor General is going to do that, Solicitor General has to own it and sign a piece of paper that says appeal or cross-appeal and make that final decision.

[00:53:26] Speaker 04:
I don't care if someone in the office reviewed it.

[00:53:29] Speaker 04:
It has to be authorized.

[00:53:30] Speaker 04:
And you're telling me that that argument to change the district court's judgment was not authorized by Solicitor General.

[00:53:36] Speaker 06:
I am telling you that there is not a slip order in the archives and OSG saying, I authorize.

[00:53:42] Speaker 04:
It's not an authorization by the Solicitor General to seek to overturn the decision of a district court, conditionally or otherwise.

[00:53:53] Speaker 06:
Your Honor, the government has not appealed.

[00:53:55] Speaker 04:
You have the only thing, you have a whole two thirds of your brief is an argument

[00:54:03] Speaker 04:
that we define as an appeal.

[00:54:05] Speaker 04:
Please change the district court's ruling.

[00:54:08] Speaker 06:
If we had filed the other version of the brief where we had said nothing on the merits, the chances that I sort of the lectern and got a whole bunch of merits questions that we hadn't briefed and hadn't run through an agency process and were originally supplemental briefing, it's not unreasonable.

[00:54:23] Speaker 04:
So you file a conditional cross-up.

[00:54:26] Speaker 04:
This is not alien stuff.

[00:54:29] Speaker 04:
You've told us it's not authorized by the Solicitor General.

[00:54:31] Speaker 04:
I don't know why we shouldn't strike that entire two-thirds of your brief, even if we get to the merits.

[00:54:39] Speaker 06:
If you wanted to view it as an amicus brief, you could.

[00:54:42] Speaker 06:
This is the government's position.

[00:54:44] Speaker 06:
The court is free to consider it or not.

[00:54:47] Speaker 04:
Well, I'm very concerned about this process issue.

[00:54:52] Speaker 04:
This is just pretty settled law and it seems like it's circumventing the rule of Solicitor General Authorization for a decision.

[00:55:02] Speaker 04:
The whole point of that process is to police when the government chooses to seek to overturn a district court's decision or not.

[00:55:10] Speaker 06:
Yeah, I want to be careful about how I characterize internal government deliberations.

[00:55:16] Speaker 06:
But what I will say is that the Solicitor General decided not to pursue an appeal in this case.

[00:55:22] Speaker 06:
Two different deputies to the Solicitor General have also reviewed the various filings the government's made.

[00:55:27] Speaker 04:
But I think the fact that the Solicitor General chose not to appeal means that you are not allowed to argue for a change in the district court judgment.

[00:55:37] Speaker 04:
As if there's something wrong in my analysis, let me know.

[00:55:42] Speaker 04:
I all said without authorization.

[00:55:48] Speaker 06:
All I can say is that, you know, the SG wanted to these views in the brief before the court and either court can consider those or not.

[00:55:58] Speaker 06:
OK.

[00:55:58] Speaker 08:
Thank you.

[00:56:14] Speaker 00:
May it please the court, Erica Turrett for Indiana Medicaid beneficiaries, Monty Rose Jr., Chelsea Lang, and Emily Rames.

[00:56:22] Speaker 00:
In 2020, the secretary approved an unprecedented 10-year extension of a Section 1115 project in Indiana.

[00:56:29] Speaker 00:
In doing so, he brushed aside years of uncontroverted record evidence demonstrating this same project had resulted in tens of thousands of low-income Hoosiers losing their Medicaid coverage.

[00:56:40] Speaker 00:
This morning, I have two key points I'd like to address.

[00:56:44] Speaker 00:
First, for the reasons the government stated and as explained in our brief, this panel is bound by this court's precedent dictating there is no jurisdiction over Indiana's appeal.

[00:56:53] Speaker 00:
As your questions to Indiana made clear, this is a routine occurrence for this court.

[00:56:58] Speaker 00:
This court's precedent is manifest in Indiana's arguments as to why it should be able to end run a categorical jurisdictional rule or unavailing.

[00:57:06] Speaker 00:
Second, if you do proceed to the merits, Judge Boasberg correctly determined the secretary failed to adequately consider Medicaid's core purpose of providing coverage to those who cannot otherwise afford it.

[00:57:18] Speaker 00:
That makes the secretary's approval arbitrary and capricious under the Administrative Procedure Act.

[00:57:24] Speaker 00:
This is the same textbook APA error the secretary made when he approved Arkansas Section 1115 waiver, and approval this court held was arbitrary and capricious in Gresham v. Azar.

[00:57:35] Speaker 00:
There's been a lot of discussion about jurisdiction this morning and unless this court has further questions, I'd like to address Judge Millett's questions about coverage laws to Indiana.

[00:57:45] Speaker 00:
If you look at JA-1200, it makes clear that between 2015 and 2016,

[00:57:52] Speaker 00:
thousand people in Indiana were never enrolled because they could not pay a premium.

[00:57:57] Speaker 00:
An additional 13,000 people in that period were terminated from their coverage for not paying premiums.

[00:58:03] Speaker 00:
That's a full 29% of people who could have been denied coverage were because of non-payment of premiums.

[00:58:12] Speaker 00:
Then on JA 1029, we go into the data from 2017 to 2018.

[00:58:17] Speaker 00:
In that period, Judge Millett asked Indiana whether the state had looked at the number of people who were never enrolled, but for not paying a premium.

[00:58:26] Speaker 00:
The state did not study that during that period, but for people who were actually terminated from coverage, it was an additional 26,000 people terminated for non-payment between 2017 and 2018.

[00:58:37] Speaker 04:
Have there been any studies of

[00:58:39] Speaker 04:
Because that's the one that involves HIP 2.0, that time period.

[00:58:45] Speaker 04:
Sorry, Your Honor?

[00:58:46] Speaker 04:
That second time period involves HIP 2.0?

[00:58:48] Speaker 04:
Do I have my dates right?

[00:58:49] Speaker 00:
Yes, HIP 2.0 was approved in 2015, so that whole time period covers HIP 2.0.

[00:58:56] Speaker 04:
Did it take effect in 2015 or 20?

[00:58:58] Speaker 04:
When you talk about statistics from 2015 to 2016, does that include HIP 2.0?

[00:59:03] Speaker 04:
Yes, that's all under HIP 2.0.

[00:59:04] Speaker 04:
All right.

[00:59:08] Speaker 04:
Are there statistics of how many people were denied coverage after 2016 to 2020, I guess?

[00:59:17] Speaker 00:
Yes, we have statistics from 2015 to 2018.

[00:59:20] Speaker 00:
And we have some initial data from 2018 to 2020.

[00:59:26] Speaker 00:
But as Indiana indicated, that data is smaller.

[00:59:29] Speaker 00:
But numerous commenters alerted the secretary to the fact that the barriers posed by premiums continue to be present.

[00:59:37] Speaker 00:
And you'll also see that type of information in the amicus brief from the American Public Health Association.

[00:59:43] Speaker 04:
And I had a question with respect to the retroactive coverage issue.

[00:59:53] Speaker 04:
So Mr. Rose says he has medical deck from before he enrolled in HIP due to emergency room visits, but doesn't say whether any of those visits were in the three month period that would be covered by retroactive provision.

[01:00:07] Speaker 04:
And Ms.

[01:00:10] Speaker 04:
Rames says, I'm saying her name correctly, Rames has unpaid bills from before she was insured with HIP, but again, doesn't say that they were incurred within the three month period.

[01:00:21] Speaker 04:
So I'm trying to understand whether

[01:00:23] Speaker 04:
You have demonstrated standing as to that particular argument.

[01:00:28] Speaker 00:
Correct, Your Honor.

[01:00:29] Speaker 00:
First, as Judge Boasberg explained, you don't need to reach that in order to find that the plaintiffs have standing to challenge him as a whole.

[01:00:35] Speaker 00:
But with respect to retroactive coverage in particular, if you look at someone like Miss Rames, she could be terminated for nonpayment of premiums because her income is above 100% of the federal poverty line.

[01:00:45] Speaker 00:
Because she has ongoing health issues, that means that there's a substantial probability that if she were terminated, she would undergo expenses in the three-month period following termination.

[01:00:57] Speaker 00:
So in our view, that's the correct way to do it.

[01:01:00] Speaker 04:
So since there's no more lockout period, I thought if she gets terminated on Tuesday, she can apply again.

[01:01:06] Speaker 04:
Wednesday.

[01:01:08] Speaker 00:
Yes, your honor, but not if she can't afford to pay the premiums, if the waiver approval in totality, including with respect to premiums, were to go back into place.

[01:01:17] Speaker 00:
That would mean that someone like Miss Ramsey would need to pay a premium in order to be back enrolled.

[01:01:22] Speaker 00:
And so our position is that if she cannot afford to pay premiums, she would go uninsured.

[01:01:27] Speaker 04:
I think that goes to the premium requirement issue.

[01:01:32] Speaker 04:
So it sounds like you do not have at least a good faith allegation that either of them has medical bills that cover the actual three month period that preceded their enrollment.

[01:01:41] Speaker 04:
correct your honor.

[01:01:42] Speaker 04:
But so you're arguing, I guess, a substantial risk that if so far they've been paying their premiums and they're still in, but if in the future they can't, then they'll be kicked off.

[01:01:56] Speaker 04:
And there's so there's a risk of that.

[01:01:58] Speaker 04:
And then there's another risk that during that time period, they're kicked off.

[01:02:01] Speaker 04:
They will incur medical bills

[01:02:06] Speaker 00:
Your honor, to take a step back, the plaintiffs haven't had to pay premiums, as this court noted, for five years since 2020.

[01:02:12] Speaker 00:
So having to pay premiums now, again, would be a significant departure from the status quo and a significant expense.

[01:02:19] Speaker 00:
And no plaintiff could guarantee for sure that if terminated from coverage, that they would have certain expenses within that three-month period.

[01:02:28] Speaker 00:
But we think under this court's precedent, if you have ongoing regular health needs that you frequently receive medical care for,

[01:02:35] Speaker 00:
then there's a substantial likelihood that within 3 months, you would have that precedent from this court.

[01:02:42] Speaker 00:
I can I can your honor.

[01:02:49] Speaker 04:
You can send it later if you want to delay things.

[01:02:51] Speaker 04:
Yes, your honor.

[01:02:57] Speaker 00:
I would point to cases like NVXL Ray Peacock v. District of Columbia from 2012 and Association of American Physicians and Surgeons v. Sebelius from 2014.

[01:03:09] Speaker 04:
Are those in your brief?

[01:03:11] Speaker 04:
Sorry?

[01:03:11] Speaker 04:
Are those in your brief?

[01:03:12] Speaker 00:
Yes, on page 24 of our brief.

[01:03:14] Speaker 00:
Got it.

[01:03:14] Speaker 04:
Thank you.

[01:03:15] Speaker 04:
Thank you very much.

[01:03:15] Speaker 04:
That's helpful.

[01:03:19] Speaker 04:
Why wouldn't if you have

[01:03:24] Speaker 04:
I'll ask you the same question on jurisdiction.

[01:03:26] Speaker 04:
If you have as here a cooperative state federal program that produces a contract between two parties, US government, state government, and that contract is vacated by a court order, and let's imagine it's hypothetical state X, and they have an experimental program

[01:03:53] Speaker 04:
to address treatment of particularly expensive types of cancer.

[01:04:02] Speaker 04:
And so because the cancer treatments are so expensive, maybe some of them experimental themselves that they want to let people in who maybe have, they don't want to go limited.

[01:04:13] Speaker 04:
They want to expand the number of people that can be covered by this.

[01:04:18] Speaker 04:
And if vacatur,

[01:04:25] Speaker 04:
terminate that experimental program.

[01:04:31] Speaker 04:
And so while the remand is ongoing, people are not receiving cancer treatments or severe other thing in dialysis or life-saving prescription medications.

[01:04:47] Speaker 04:
Isn't that about as practical a reason for recognizing finality as we could have?

[01:04:55] Speaker 00:
Your Honor, taking a step back, I think it's important to keep in mind that with respect to vacator here, that's the standard remedy under the APA when you remand.

[01:05:05] Speaker 00:
So if we were to treat vacator, remand with vacator and remand without vacator differently, that would cut a huge hole in this court's precedent regarding non-final remand orders.

[01:05:17] Speaker 00:
I'll also say with respect to that hypothetical, I would consider this court's decision in Melinda Therapeutics

[01:05:23] Speaker 00:
There, the FDA had approved a new drug.

[01:05:26] Speaker 00:
The district court vacated the approval and remanded the decision back to the agency.

[01:05:31] Speaker 00:
Nexus Pharmaceuticals, the intervener, came in and talked about all the harms.

[01:05:36] Speaker 00:
It would not only not be able to market the drug during remand, it said, but also that ill patients would go without access to the treatment, and this court still said no jurisdiction.

[01:05:47] Speaker 04:
When the FDA makes an error in approving a drug, there may well be concerns with safety and effectiveness.

[01:05:51] Speaker 04:
There's no safety and effectiveness of a drug analysis or cancer treatments here.

[01:05:56] Speaker 04:
So it doesn't seem to present the same that also wasn't a cooperative state program.

[01:06:04] Speaker 04:
You can't take the government's side of the contract down without taking Indiana's side down as well.

[01:06:09] Speaker 04:
And so if they actually came forward and made a showing, people will die or people will have extraordinary health impairments.

[01:06:21] Speaker 04:
Sorry, we have this remand rule.

[01:06:25] Speaker 04:
That's not final enough.

[01:06:27] Speaker 04:
You can talk about that on your appeal later.

[01:06:31] Speaker 00:
Your honor, we don't think that vacatur is determinative of the jurisdictional question.

[01:06:36] Speaker 00:
And this court has never viewed remand orders differently on that basis.

[01:06:41] Speaker 00:
We also think it's important to consider that here this is about a section 1115 approval.

[01:06:46] Speaker 00:
It's not about the underlying Medicaid agreement between the federal government and the state.

[01:06:52] Speaker 00:
As the federal government indicated, that would be the state plan.

[01:06:56] Speaker 00:
So it's not as if vacating a section 1115 approval

[01:06:59] Speaker 00:
disturbs the underlying Medicaid program?

[01:07:02] Speaker 04:
My hypothetical would disturb this program and the state's going to come forward and say, this is hugely consequential.

[01:07:12] Speaker 00:
Understood, Your Honor.

[01:07:13] Speaker 00:
And we think this court's rule is that a remand order that returns the court dispute to the agency to reconsider the decision for significant further proceedings is a categorical rule.

[01:07:24] Speaker 00:
We think practicality considerations are baked into the court's exceptions.

[01:07:28] Speaker 00:
And in your hypothetical, I don't see one of those exceptions applying.

[01:07:32] Speaker 04:
So we haven't recognized an exception like this yet.

[01:07:34] Speaker 04:
But

[01:07:36] Speaker 04:
You know, initially we hadn't at all and then we recognize one for the government and then we recognize one for well, the government agency is not going to do anything so they won't be able to appeal later.

[01:07:45] Speaker 04:
So we have recognized practical exceptions.

[01:07:50] Speaker 04:
Have we said that list has been exhausted?

[01:07:53] Speaker 00:
No, your honor, but the government's exception is based on the idea that it will never be able to appeal its efforts to comply with the remand order and the practical exceptions.

[01:08:04] Speaker 00:
All are in cases where the core dispute was not returned to the agency for further proceedings.

[01:08:09] Speaker 00:
or the agency wasn't going to act.

[01:08:12] Speaker 00:
So you, in the dialogue with Indiana, explain that this court has said that if the agency concedes an oral argument, for example, that they're not going to act, that that would warrant an exception.

[01:08:23] Speaker 00:
That's what happened in in-ray long distance telephone, for example.

[01:08:26] Speaker 00:
So in all those cases where practicality as an exception has been baked in or recognized by this court, it's instances where the agency was not going to reconsider the decision on remand and where the court left discretionary room for the agency to act.

[01:08:45] Speaker 03:
All right.

[01:08:47] Speaker 03:
Thank you very much, counsel.

[01:08:48] Speaker 03:
Thank you, your honor.

[01:08:52] Speaker 03:
Mr. Eduardo, we will give you three minutes for rebuttal.

[01:08:59] Speaker 07:
Thank you, Your Honor.

[01:09:00] Speaker 07:
Two points, one on jurisdiction, one on coverage.

[01:09:04] Speaker 07:
On jurisdiction, all parties accept that this court would have jurisdiction over the appeal if the government had filed a notice of appeal.

[01:09:12] Speaker 07:
We think that same rule should apply to states where there is a decision impacting cooperative federalism program.

[01:09:19] Speaker 07:
They're just as affected by the federal government, if not more so by any decision, and like the government, face the prospect of not being able to appeal if, for example, on remand, there's a new decision and for whatever reason, the plaintiffs decide not to challenge it.

[01:09:34] Speaker 07:
And I don't think that because of that parity, I don't think the stay factors into this analysis, but I would also just remind the court that if the partial stay is going to factor in, that does create a perverse incentive to seek disruption to create jurisdiction.

[01:09:52] Speaker 07:
On the coverage point, all of the data that the plaintiffs have talked about was either before 2018,

[01:10:00] Speaker 07:
That overlooks that as page 882 of the joint appendix notes, there was a substantial restructuring of the power account structure in 2018.

[01:10:09] Speaker 07:
That means you can't rely on pre-2018 data.

[01:10:12] Speaker 07:
And while there was an expectation that the secretary expressed on pages 755 and 756 that this issue would continue to be studied, at the time the approval issued, we now were into the COVID era where

[01:10:26] Speaker 07:
due to both special COVID error rules as well as just the general dissimilarity in circumstances in society where it was not possible to continue testing this aspect of the program until COVID ended.

[01:10:39] Speaker 04:
Have you resumed testing since COVID ended?

[01:10:42] Speaker 07:
We have not been able to, Your Honor.

[01:10:45] Speaker 04:
Not been able to or just haven't?

[01:10:46] Speaker 07:
We have not been able to because

[01:10:49] Speaker 07:
The special COVID era rules sort of lasted right up until we got the district court's decision in this case.

[01:10:55] Speaker 04:
And then at that point... Wait, you mean special COVID funding?

[01:10:58] Speaker 07:
So there was special COVID legislation that says states could not disenroll.

[01:11:01] Speaker 04:
There wasn't a reason you couldn't have done a study.

[01:11:05] Speaker 07:
Based on funding that was accepted at the beginning of COVID, there was no longer any contributions to power accounts being charged during that period.

[01:11:13] Speaker 07:
So the issue, there wasn't a factual material to study.

[01:11:16] Speaker 04:
Financial decision was made.

[01:11:17] Speaker 07:
Correct.

[01:11:18] Speaker 07:
And then when COVID, those rules ended, we had the district court's decision that vacated the portions of the waiver that would be needed to implement those contributions and therefore have data to test.

[01:11:28] Speaker 04:
OK.

[01:11:28] Speaker 04:
And then did you just say that the data from 2018 to 2019

[01:11:34] Speaker 04:
It's years after HIP 2.0 was adopted.

[01:11:37] Speaker 04:
It doesn't track the operation of HIP 2.0.

[01:11:40] Speaker 07:
I'm sorry.

[01:11:42] Speaker 07:
Pre-2018 data, which is all the data that the plaintiffs are pointing to, can't be used to assess HIP 2.0 post-2018.

[01:11:49] Speaker 07:
Because in 2018, there were major structural changes done to power accounts that had the effect of lowering premiums to $1 for about half of the population.

[01:11:59] Speaker 07:
And that simplified the whole structure to address some of the concerns that

[01:12:03] Speaker 07:
commenters had raised about the pre-2018 operation.

[01:12:06] Speaker 03:
Any questions?

[01:12:10] Speaker 03:
All right.

[01:12:10] Speaker 03:
Thank you, Your Honor.

[01:12:11] Speaker 03:
Thanks to all counsel.

[01:12:11] Speaker 03:
The case is submitted.