00:00Mr. Brunch, can I just ask you, to what extent is the administrative appeal scheme relevant
00:06to the first step of this inquiry?
00:09What I'm a little worried about is that your argument seems to be conflating what had traditionally
00:15been understood and what we reaffirmed in Tlefsky as two different steps of the analysis
00:21in 1983.
00:23And the first relates to, to what extent is this provision unambiguously rights-creating?
00:31And then the second step asks whether Congress has created some sort of alternative remedy
00:36or what is the enforcement scheme such that we might believe that 1983 is not available.
00:43So can you just help me to understand whether you're now suggesting that we evaluate whether
00:50this is rights-creating, as we talked about, in the first step relative to an understanding
00:56of what Congress has done with respect to enforcement?
01:00To be clear, Justice Jackson, we are not making a step two, see clamors argument.
01:04Never have.
01:05I'm not making it here.
01:06But as this Court made clear in Gonzaga, that the remedies available can buttress the interpretation
01:11of whether there is clear rights-creating language in step one.
01:14And that's what you said in the Souter decision in footnote 11 as well.
01:17And so we're using the provider's remedy and the lack of any beneficiary remedy to
01:22be able to challenge that provider's disqualification.
01:23That does seem awfully confusing.
01:25I mean, you know, there isn't a whole lot of indication that lower courts are confused
01:31about this.
01:32I looked very carefully at Judge Wilkinson's opinion.
01:36He lays out very clearly how this works and what we've said repeatedly.
01:40And I guess my concern is that the kinds of things, and I appreciate you had a long list
01:44of reasons why you think this isn't rights-creating, but one of them had to do with the nature
01:50of this, you know, the enforcement mechanism.
01:52And I just see that as a step two concern.
01:54And I'm worried about us getting people confused if we start putting those considerations
02:00into the first analysis.
02:01Well, I think the analysis is distinct.
02:04If you're making a step two analysis, the argument is that the remedies are so comprehensive
02:08that it bars the ability to go to federal court.
02:11In step one, just like in Gonzaga, just like in Souter, the court is entitled to consider
02:15remedies like the fact that the disqualified provider has an administrative appeal to determine
02:21whether there is a right to go to court.
02:23And I would note that one of the reasons it's significant Congress gave that administrative
02:27appeal to the disqualified provider and not to the beneficiary is because the provider
02:32is the one who has all the information.
02:34Under Respondent's Theory, if a provider commits malpractice and they're disqualified for that
02:39action, there's still a beneficiary right to go to federal court and bring a 1983 action.
02:43And that makes no sense.
02:44Because what does a beneficiary know about a provider's medical malpractice involving
02:49other patients?
02:50Can I just turn your attention back to what I understand to be the classic kind of step
02:53one inquiry here and get us back to Justice Kagan's point about the state being aware
03:01of an obligation to do this.
03:03And I note that although you suggest that it would be easier if the word right was
03:10in the statute, sorry, in this particular statute, 1983 itself talks about rights,
03:17privileges, and immunities.
03:18So even if we were to have a magic words test, it seems to me to be too narrow
03:23to just say that Congress has to say rights, because we have in the 1983 concept
03:30in the actual text of the statute, rights, privileges, and immunities secured by the
03:36Constitution and laws.
03:38So with an understanding of what 1983 was about, can you speak to why an obligation
03:45of this nature that runs to an individual in the way that Justice Kagan described doesn't
03:53get us sort of in the realm of rights, privileges, and obligations secured by the law?
03:59Yeah, two thoughts on that, Justice Jackson.
04:00First, we're not limiting this to right.
04:02As I mentioned earlier, entitlement, privilege, I would even spot you immunity because that's
04:07in section 1983.
04:08I think any of those have the same rights-creating pedigree.
04:13But it is a high bar.
04:14An obligation is not enough.
04:16Telling a state that it has an obligation to do something or that it must provide something
04:21isn't the same as saying you have the ability to sue them in federal court and have 1983
04:27fee-shifting opportunities.
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