Appellate Case: 19-2210 Document: 010110503541 Date Filed: 04/05/2021 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 5, 2021
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`Plaintiff - Appellant/Cross-
`Appellee,
`
`
`
`
`
`
`No. 19-2210 & 20-2024
`
`NEW MEXICO ONCOLOGY AND
`HEMATOLOGY CONSULTANTS, LTD.,
`
`
`
`
`v.
`
`PRESBYTERIAN HEALTHCARE
`SERVICES; PRESBYTERIAN
`NETWORK, INC.; PRESBYTERIAN
`HEALTH PLANS, INC.;
`PRESBYTERIAN INSURANCE, CO.,
`INC.,
`
`
`
`
`------------------------------
`
`COMMUNITY ONCOLOGY
`ALLIANCE; AMERICAN MEDICAL
`ASSOCIATION; AMERICAN
`HOSPITAL ASSOCIATION,
`
`
`
`Defendants - Appellees/Cross-
`Appellants.
`
`Amici Curiae.
`
`_________________________________
`
`Appeal from the United States District Court
`for the District of New Mexico
`(D.C. No. 1:12-CV-00526-MV-GBW)
`_________________________________
`
`George M. Sanders, Law Offices of George M. Sanders, Chicago, Illinois (Thomas
`Bacon, Law Offices of George M. Sanders, Chicago, Illinois, and Alice Lorenz, Lorenz
`
`
`
`
`
`

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`Appellate Case: 19-2210 Document: 010110503541 Date Filed: 04/05/2021 Page: 2
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`Law, Albuquerque, New Mexico, with him on the briefs), for Plaintiff - Appellant/Cross -
`Appellee.
`
`Jeffrey A. LeVee, Jones Day, Los Angeles, California (Kelly M. Ozurovich, Jones Day,
`Los Angeles, California, Kate Wallace, Jones Day, Boston, Massachusetts, Edward
`Ricco, Charles K. Purcell and Bruce D. Hall, Rodey, Dickason, Sloan, Akin & Robb,
`P.A., Albuquerque, New Mexico, with him on the briefs), for Defendants -
`Appellees/Cross - Appellants.
`
`Leonard A. Nelson and Kyle A. Palazzolo, American Medical Association, Chicago,
`Illinois, file an Amici Curiae brief for American Medical Association.
`
`Jeremy A Rist, Blank Rome LLP, Philadelphia, Pennsylvania, filed an Amici Curiae brief
`for Community Oncology Alliance, Inc.
`
`Douglas Ross and David Maas, Davis Wright Tremaine LLP, filed an Amici Curiae brief
`for American Hospital Association.
`_________________________________
`
`Before MATHESON, KELLY, and EID, Circuit Judges.
`_________________________________
`
`KELLY, Circuit Judge.
`_________________________________
`
`Plaintiff-Appellant New Mexico Oncology Hematology Consultants Ltd.
`
`(NMOHC) appeals from the district court’s grant of summary judgment to
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`Defendants-Appellees Presbyterian Healthcare Services (PHS), Presbyterian
`
`Network, Inc., Presbyterian Insurance Co., and Presbyterian Health Plans, Inc. (PHP)
`
`(collectively, Defendants) on NMOHC’s Sherman Act, Section 2, monopolization
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`and attempted monopolization claims. N.M. Oncology v. Presbyterian Healthcare
`
`Servs., 418 F. Supp. 3d 826 (D.N.M. 2019). Exercising jurisdiction under 28 U.S.C.
`
`§ 1291, we affirm.
`
`
`
`
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`Background
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`NMOHC is a physician practice that owns and operates the New Mexico
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`Cancer Center (NMCC) in Albuquerque. PHS is a not-for-profit integrated
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`healthcare system that participates in multiple markets, including the private health
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`insurance market, the oncology market, and the inpatient hospital services market.
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`PHS employs many physicians, who are referred to collectively as the Presbyterian
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`Medical Group (PMG). PHS also controls PHP which operates, on a for-profit basis,
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`and sells health insurance products, including commercial health insurance to
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`employers and individuals, Medicare Advantage plans to seniors, and Medicaid
`
`plans. NMOHC is an in-network provider for PHP.
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`The NMCC opened in 2002 and NMOHC and PHP entered into a five-year
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`provider agreement. At the expiration of the five-year term, the agreement would
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`move into evergreen status and renew on an annual basis if PHP and NMOHC did not
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`enter into a new agreement. In 2007, PHS opened its own oncology program and
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`began to compete with NMOHC. Around the same time, NMOHC and PHP began
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`negotiating a new provider agreement, however, the negotiations stalled as PHP
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`demanded a $3 million reduction in PHP’s payments. NMOHC and PHP remain
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`under the terms of the original provider agreement.
`
`NMOHC’s claims on appeal center around three alleged anticompetitive
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`practices that PHS implemented: (1) the “Mandate;” (2) an alleged joint venture
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`between PHP and Radiology Associates of Albuquerque (RAA); and (3) PHS’s
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`3
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`policies concerning physician referrals.1 The Mandate was a benefit change that PHP
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`implemented on its Medicare Advantage plans. Pursuant to the Mandate, PHP would
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`cover certain chemotherapy support drugs covered under Medicare Part B — drugs
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`administered to address side effects from chemotherapy agents, such as nausea —
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`only if they were purchased from the Presbyterian Specialty Care Pharmacy. To
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`administer the drugs at the NMCC, NMOHC would have to accept shipments of the
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`drugs from the Presbyterian Pharmacy at the NMCC, a process NMOHC calls “white
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`bagging,” which it refused to do. NMOHC refused to accept these drugs on the
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`grounds that its doctors did not know the sources of the medication, did not know if
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`the Presbyterian pharmacy was appropriately handling the drugs, and did not know
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`the timing of when the Presbyterian pharmacy would make any shipment.
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`NMOHC also alleges that a joint venture between RAA and PHP existed in
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`which PHP enrollees needing breast imaging services were forced to use RAA under
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`their PHP plan. RAA shared office space with PHS-employed breast surgeons and
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`nurse navigators. NMOHC alleges that once a PHP patient was diagnosed with
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`breast cancer, RAA would refer the patient to a PHS breast surgeon and a nurse-
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`navigator would then schedule an appointment for the patient with a PHS oncologist
`
`
`1 NMOHC also asserted below: (1) that in its negotiations for a new provider
`agreement with PHP, PHP attempted to lower reimbursement rates below competitive
`levels in an attempt to eliminate NMOHC from the oncology market; and (2) that
`PHP and United Healthcare colluded to constrain competition in the private health
`insurance market. N.M. Oncology, 418 F. Supp. 3d at 841. NMOHC briefly
`mentions this conduct in its facts section but does not sufficiently raise it on appeal
`as anticompetitive conduct, thereby waiving any argument on this ground. See Exum
`v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004).
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`without consulting the patient’s physician. Separately, the enhanced referral
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`management program was a PHS program to track PMG physician referrals and
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`encourage internal referrals.
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`NMOHC filed suit against Defendants in 2012. In its Third Amended
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`Complaint (TAC), it asserted claims under Section 2 of the Sherman Act for
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`monopolization and attempted monopolization. NMOHC also asserted a parallel
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`claim under New Mexico antitrust law,2 a RICO claim, and other non-antitrust state
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`law claims. Defendants moved to dismiss NMOHC’s Second Amended Complaint at
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`the time under Rule 12(b)(6), but the district court denied the motion. However, the
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`district court has dismissed NMOHC’s RICO claim and claim for monopolization of
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`the inpatient hospital services market. See N.M. Oncology & Hematology
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`Consultants, Ltd. v. Presbyterian Healthcare Servs., 169 F. Supp. 3d 1204 (D.N.M.
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`2016); N.M. Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare
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`Servs., 54 F. Supp. 3d 1189 (D.N.M. 2014). NMOHC has not appealed either ruling.
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`In March 2017, Defendants moved for summary judgment on the remaining
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`claims, which the district court granted. N.M. Oncology, 418 F. Supp. 3d at 866.
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`The district court examined whether Defendants possessed monopoly power as
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`regards the monopolization claim or whether there was a dangerous probability of
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`achieving monopoly power insofar as attempted monopolization. It concluded that
`
`
`2 In evaluating New Mexico Antitrust Act claims, the court generally follows
`authority interpreting claims under Section 2 of the Sherman Act. N.M. Stat. Ann. §
`57-1-15.
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`genuine issues of fact might exist. Id. at 840, 859. But it determined that NMOHC
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`had failed to establish that Defendants engaged in exclusionary conduct. Id. at 841,
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`860. NMOHC failed to establish that any of Defendants’ unilateral conduct
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`constituted anticompetitive conduct under the Sherman Act. Id. at 847–48. The
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`district court considered the conduct alleged as a “refusal to deal” but none of that
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`conduct demonstrated the requisite willingness to forgo short-term profits for an
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`anticompetitive end. Id. at 850, 854–55, 866. After dismissing the Sherman Act
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`claims, the district court declined to exercise jurisdiction over the remaining state law
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`claims. Id. at 866.
`
`On appeal, NMOHC argues the district court (1) disregarded the testimony of
`
`its experts, (2) failed to consider all of the evidence or draw inferences in favor of
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`NMOHC as the non-movant, (3) made factual findings on disputed issues of fact, and
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`(4) made its own market share calculations and ignored Defendants’ monopoly power
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`over Medicare Advantage plans, as well as the consumer harm caused by the
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`Mandate and Defendants’ referral practices. NMOHC argues that it “never framed its
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`antitrust theories as predatory bidding, too low or too high prices, the termination of
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`its provider contract (because the provider contract was not terminated), nor a refusal
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`to deal,” yet the district court analyzed the case as if it had. This is belied by
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`NMOHC’s presentation which urges the court to combine various antitrust concepts
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`(many of which were not raised directly below) and find sufficient evidence of
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`antitrust violations.
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`Discussion
`
`We review the district court’s grant of summary judgment de novo. Chasteen
`
`v. UNISIA JECS Corp., 216 F.3d 1212, 1216 (10th Cir. 2000). Summary judgment
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`is appropriate when “there is no genuine dispute as to any material fact and the
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`movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
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`material if it can “have an impact on the outcome of the lawsuit” and genuine if “a
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`rational jury could find in favor of the non-moving party based on the evidence
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`presented.” Chasteen, 216 F.3d at 1216. To survive a motion for summary
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`judgment, the nonmoving party must show more than “[t]he mere existence of a
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`scintilla of evidence in support of the [nonmoving party’s] position . . . there must be
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`evidence on which the jury could reasonably find for the [nonmoving party].”
`
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We may also presume
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`that businesses act rationally when we evaluate their conduct. See Matsushita Elec.
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`Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 595 (1986).
`
`The district court did not err in holding that NMOHC had failed to establish a
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`Sherman Act claim under Section 2 because NMOHC failed to establish that
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`Defendants had engaged in exclusionary or anticompetitive conduct.
`
`The elements of a § 2 monopolization claim are (1) monopoly power in
`the relevant market; (2) willful acquisition or maintenance of this power
`through exclusionary conduct; and (3) harm to competition. And the
`elements of a § 2 attempted monopolization claim are (1) predatory or
`anticompetitive conduct, (2) a specific intent to monopolize, and (3) a
`dangerous probability of achieving monopoly power.
`
`
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`Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1231 (10th Cir.
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`2017) (citation omitted). While monopolization and attempted monopolization
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`claims are distinct, there is sufficient overlap that anticompetitive conduct under
`
`either claim can be evaluated together. See Four Corners Nephrology Assocs., P.C.
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`v. Mercy Med. Ctr. of Durango, 582 F.3d 1216, 1222 (10th Cir. 2009).
`
`Anticompetitive conduct comes in too many forms to permit a “comprehensive
`
`taxonomy,” however, over time the inquiry of what is anticompetitive conduct has
`
`been defined into several common forms of conduct. Novell, Inc. v. Microsoft Corp.,
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`731 F.3d 1064, 1072 (10th Cir. 2013). Generally, unilateral conduct cannot be
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`considered anticompetitive, but “liability can sometimes be assigned” based on
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`unilateral conduct. Id. at 1072–74. These exceptions include such conduct as a
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`refusal to deal. Id. at 1074. To establish a refusal to deal claim, the plaintiff must
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`establish: (1) that there was a “preexisting voluntary and presumably profitable
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`course of dealing between the monopolist and rival;” and (2) that “the monopolist’s
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`discontinuation of the preexisting course of dealing must suggest[ ] a willingness to
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`forsake short-term profits to achieve an anti-competitive end.” Id. at 1074–75
`
`(citation omitted).
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`None of the conduct that NMOHC asserts was anticompetitive constituted a
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`refusal to deal. First and foremost, none of the conduct demonstrated a willingness to
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`“forsake short-term profits to achieve an anti-competitive end.” Id. at 1075 (citation
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`omitted). PHP implemented the Mandate on the grounds that it could obtain the
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`same drugs at a discounted rate under the federal 340B drug program through the
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`Presbyterian pharmacy. As we discuss below, NMOHC’s claim lacks “significantly
`
`probative” evidence, Anderson, 477 U.S. at 249–50, tending to show otherwise.
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`Further, NMOHC’s allegations of anticompetitive referral practices, either by nurse
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`navigators or by PMG physicians, would also not constitute a refusal to deal because
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`referring patients internally would serve to increase revenues.
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`Second, none of the asserted conduct shows that Defendants ended a
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`preexisting course of dealing with NMOHC. Defendants’ practice of referring
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`patients to NMOHC for treatment did not end, it only decreased. As for the Mandate,
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`PHP did not have a course of dealing with NMOHC through its Medicare Advantage
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`plans because those plans were sold by PHP to consumers.
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`NMOHC’s allegation of a “joint venture” between RAA and PHS, that might
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`bring NMOHC’s conduct beyond unilateral conduct, also has no merit. Dr. Brian
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`Potts, former President of RAA, testified that he was not aware of any agreements
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`between RAA and Defendants concerning referrals. Dr. Potts also testified that any
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`referrals that RAA made to surgeons were made based on a consultation with the
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`referring physician. Indeed, NMOHC seemingly concedes this by referring to the
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`joint venture as a “de facto joint venture.” Further, the evidence that NMOHC relies
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`upon for proof that there was a joint venture does not support its assertion. It first
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`cites to its own response to Defendants’ third set of interrogatories to assert that a
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`joint venture existed and that there was a referral agreement between RAA and PHS.
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`NMOHC also cites to the testimony of a nurse-navigator that it alleges shows that
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`RAA would refer patients to PHS surgeons and oncologists. However, the nurse-
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`navigator never testified to any joint venture, only testifying that she interacted with
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`patients after they had already been referred to a PHS surgeon through RAA.
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`NMOHC also claims that the Mandate, which it at times characterizes as an
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`unlawful tying arrangement, but then denies it was relying on a tying claim, was
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`implemented “as part of a leveraging strategy to drive NMOHC from the Outpatient
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`Oncology Services market.” However, NMOHC does not sufficiently define this
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`argument in its opening brief nor does it address the district court’s reasoning that
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`such a leveraging claim cannot establish anticompetitive conduct under the Sherman
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`Act. N.M. Oncology, 418 F. Supp. 3d at 850–51, 855. Such inadequately briefed
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`arguments are waived. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir.
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`1995).
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`Indeed, on the merits, such argument fails as well. NMOHC’s argument
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`regarding the Mandate could be interpreted as a “monopoly leveraging” claim, which
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`is an effort to use “monopoly power in one market merely to achieve a competitive
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`advantage in a second market” — here, the health insurance and outpatient oncology
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`markets respectively. Four Corners, 582 F.3d at 1222. However, a monopoly
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`leveraging claim does not demonstrate a violation of Sherman Act section 2, absent
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`proof of some other anticompetitive conduct in the allegedly monopolized market.
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`Id. Therefore, where a plaintiff has not established some other anticompetitive
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`conduct, accusing the defendant of “‘monopoly leveraging’ won’t do anything to
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`save” the claim. Id. NMOHC has not established any other type of anticompetitive
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`conduct so its argument of a “leveraging strategy” is unavailing.
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`NMOHC — and the American Medical Association (the AMA) as amicus —
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`seemingly argues that that its claim should not be evaluated under defined categories
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`of anticompetitive conduct, but instead through an ad hoc and fact-specific analysis.
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`Indeed, as noted above, NMOHC asserts that its claims are not based on a theory of
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`predatory bidding, a refusal to deal, or a tying claim. Rather, according to NMOHC,
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`anticompetitive conduct can take a variety of forms and “[w]hether specific conduct
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`is anticompetitive requires a fact-specific analysis.”
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`However, while anticompetitive conduct does take many forms, courts have
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`been able to adapt the general inquiry of what is anticompetitive conduct into
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`particular circumstances, that has allowed the creation of specific rules for common
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`forms of alleged misconduct. Novell, 731 F.3d at 1072. The difficulty with an ad
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`hoc approach is that the line between anticompetitive conduct and aggressive
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`competition “can be indistinguishable.” Monsanto Co. v. Spray-Rite Serv. Corp.,
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`465 U.S. 752, 762 (1984). Indeed, when it comes to enforcing unilateral
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`anticompetitive conduct, there is a risk that over-enforcement could actually inhibit
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`competition, “since it may lessen the incentive for the monopolist” to invest in their
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`business. Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP, 540 U.S.
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`398, 407–08 (2004). Given this, the Supreme Court’s narrowing of the type of
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`unilateral conduct that can be anticompetitive strikes the appropriate balance between
`
`preventing anticompetitive behavior while also protecting competition itself by
`
`allowing firms to take actions to recoup their investments. See Four Corners, 582
`
`F.3d at 1221–22.
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`Even looking at the substance of NMOHC’s claims outside of the scope of a
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`refusal to deal, Defendants’ actions still do not appear to be anticompetitive. As to
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`the claims concerning internal referrals, PHS was under no obligation to refer its
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`patients to another practice or hospital. See id. at 1223. As for the Mandate, again,
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`the Mandate affected a relationship that PHP had with its plan members, not
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`NMOHC. Further, the Mandate was not anticompetitive because it was NMOHC’s
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`decision not to accept the drugs from Presbyterian’s pharmacy that inflicted a
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`hardship on its patients, not PHP’s decision. While NMOHC may have had
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`justifiable reasons for not accepting the drugs at its facility, other providers did
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`accept the drugs, and NMOHC cannot frame its own decisions as another’s
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`anticompetitive conduct.
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`NMOHC also raises several other arguments, but all fail. NMOHC attempts to
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`argue that Defendants’ referral practices were similar to a “group boycott.”
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`However, NMOHC does not define this type of conduct and never made such a claim
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`below, therefore waiving this argument on appeal. See United States v. Viera, 674
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`F.3d 1214, 1220 (10th Cir. 2012). NMOHC also argues that the referral practices
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`were “akin to the coercive conduct against customers that the Supreme Court
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`condemned in” Lorain Journal Co. v. United States, 342 U.S. 143 (1951). However,
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`NMOHC does not sufficiently define this argument nor does it make any factual
`
`comparison of Lorain Journal to this case. Lorain Journal involved a newspaper that
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`refused to sell advertising space to advertisers who advertised on a local radio station
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`that the newspaper was intending to put out of business. 342 U.S. at 148. It is that
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`refusal to sell advertising space “even if compensated at retail price” that makes the
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`conduct in Lorain Journal anticompetitive. See Verizon Commc’ns, 540 U.S. at 409.
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`NMOHC does not make any equivalent allegations, let alone present such evidence,
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`against Defendants.
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`NMOHC and the amici also argue that Defendants’ referral programs were
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`unethical and harmed patients. However, the Sherman Act does not incorporate
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`professional ethical rules. See Nat’l Soc’y of Prof. Eng’rs v. United States, 435 U.S.
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`679, 696 (1978). Further, such a complaint would be better suited to professional
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`regulatory bodies.
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`NMOHC argues that the district court erred because antitrust cases should
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`generally not be resolved on summary judgment due to the fact intensive nature of
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`the claims. However, while “summary judgment should be used sparingly in antitrust
`
`cases, the usual rules governing summary judgment still apply.” Bell v. Fur Breeders
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`Agric. Co-op., 348 F.3d 1224, 1229 (10th Cir. 2003) (citation omitted). Just as in
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`any Rule 56 motion, NMOHC has the burden “to set forth specific facts showing that
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`there is a genuine issue for trial.” In re Rumsey Land Co., 944 F.3d 1259, 1270 (10th
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`Cir. 2019) (citation omitted). NMOHC has not met this burden.
`
`NMOHC also argues that the alleged cost for a referral to NMOHC is an
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`internal transfer payment between PHS and PHP, which it asserts is not a real cost.
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`However, NMOHC’s own expert admitted that the amounts paid by PHP to NMOHC
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`were a real cost and that PHS saved money by reducing outside referrals.
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`Finally, NMOHC argues that there was no evidence that PHS saved costs
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`through the Mandate and that therefore there is a genuine dispute of material fact as
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`to PHS’ willingness to forsake short term profits that should have precluded summary
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`judgment. It argues the Defendants could have lost money from the Mandate because
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`the reimbursement rates PHP paid to NMOHC were lower than PHS’ drug
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`acquisition costs. However, even if NMOHC had significantly probative evidence on
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`this issue — which, as discussed below, it did not — this dispute probably is
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`immaterial. No evidence suggests that Defendants discontinued a preexisting course
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`of dealing with NMOHC as regards the Mandate and therefore “the outcome of the
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`suit” would not be affected. Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th
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`Cir. 2000) (citation omitted). As stated above, the Mandate affected a relationship
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`between PHP and its members, not NMOHC.
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`NMOHC also lacks “significantly probative” evidence to support its assertion
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`that Defendants did not save money because of the Mandate. Anderson, 477 U.S. at
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`249–50. According to PHP’s Executive Director of Pharmacy Services, PHP paid
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`lower costs for drugs through the Presbyterian pharmacy. NMOHC conceded that
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`Presbyterian could “make additional profits from the sale of 340B drugs” than it
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`would otherwise make selling drugs not purchased through the 340B program.
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`NMOHC also asserts that the cost savings from the Mandate only represent “an
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`internal transfer payment between PHS and PHP,” but again, such transfer payments
`
`represent a real cost.
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`NMOHC cites to its Fifth Supplemental Response to Defendants’ Third Set of
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`Interrogatories to argue that the evidence on record suggests that PHS “actually could
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`suffer losses as a result of the Mandate.” NMOHC’s assertion is that Defendants
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`assumed that 70% of patients covered by the Mandate could receive 340B drugs, but
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`that such assumption was overstated. NMOHC asserts that as a result, PHS lost
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`money from the implementation of the Mandate because PHS’ acquisition costs for
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`the drugs exceeded the reimbursement it received from PHP for drugs PHS could not
`
`sell to patients under the 340B program. However, NMOHC must show that
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`Defendants took actions that “suggest[ ] a willingness to forsake short-term profits,”
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`not merely that an implemented policy resulted in a loss after-the-fact. See Novell,
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`731 F.3d at 1074–75.
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`We conclude that NMOHC has failed to establish that Defendants had engaged
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`in exclusionary or anticompetitive conduct, therefore, we do not address the question
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`of monopoly power or antitrust injury. The district court did not abuse its discretion
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`in declining to exercise jurisdiction over NMOHC’s remaining state law claims after
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`it dismissed the Sherman Act claims. See Brooks v. Gaenzle, 614 F.3d 1213, 1229
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`(10th Cir. 2010).
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`On appeal, the AMA, Community Oncology Alliance, Inc. (COA), and
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`American Hospital Association (AHA) also move for leave to file briefs as amicus
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`curiae. The parties oppose the respective motions on the grounds that the briefs rely
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`on extra-record evidence and that they make arguments that are irrelevant to the
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`issues on appeal. We provisionally granted leave for amici to file. Federal courts
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`Appellate Case: 19-2210 Document: 010110503541 Date Filed: 04/05/2021 Page: 16
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`have discretion in allowing participation as amicus curiae. See, e.g., Richardson v.
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`Flores, 979 F.3d 1102, 1106 (5th Cir. 2020). Under Appellate Rule 29(b), a motion
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`seeking leave to participate as amicus must, state the movant’s interest, “why an
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`amicus brief is desirable,” and “why the matters asserted are relevant to the
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`disposition of the case.” See Fed. R. App. P. 29(b)(3). The amici have complied
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`with this requirement and their briefing is relevant to the disposition of the case. The
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`amici address whether this court should reconsider its antitrust jurisprudence in light
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`of its impact on, inter alia, health care delivery systems and physician practices.
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`They also provide more information about the Defendants’ practices, including the
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`implementation of the Mandate. Therefore, amici have an interest in this proceeding
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`and brief matters relevant to the disposition of this case.
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`AFFIRMED. We also GRANT the American Medical Association,
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`Community Oncology Alliance, Inc., and American Hospital Association leave to file
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`as amicus curiae.
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