 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 9, 2015            Decided February 9, 2016

                        No. 15-5015

        AMERICAN HOSPITAL ASSOCIATION, ET AL.,
                    APPELLANTS
                        v.
 SYLVIA MATHEWS BURWELL, IN HER OFFICIAL CAPACITY AS
      SECRETARY OF HEALTH AND HUMAN SERVICES,
                     APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-00851)


    Catherine E. Stetson argued the cause for appellants.
With her on the briefs was Jaclyn L. DiLauro. Adam K. Levin
entered an appearance.

    Ronald S. Connelly was on the brief for amicus curiae
Fund for Access to Inpatient Rehabilitation in support of
appellants.

     Joshua M. Salzman, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Vincent H. Cohen Jr., Acting U.S. Attorney, Mark B.
Stern, Attorney, William B. Schultz, General Counsel, U.S.
Department of Health and Human Services, Janice L.
                               2
Hoffman, Associate General Counsel, and Susan Maxson
Lyons, Deputy Associate General Counsel.

    Before: TATEL, KAVANAUGH, and SRINIVASAN, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge TATEL.

     TATEL, Circuit Judge: At heart, this case is about an
agency caught between two congressionally assigned tasks.
Congress has prescribed specific time frames for the Secretary
of Health and Human Services to reach decisions on various
stages of administrative appeals of Medicare reimbursement
claim denials. But Congress has also directed the Secretary to
implement the Medicare Recovery Audit Program to detect
waste, fraud, and abuse. Although the audit program has
recovered billions of dollars in fraudulently or otherwise
improperly paid funds, it has also contributed significantly to
a volume of appeals that makes compliance with the statutory
time frames impossible. Plaintiffs, including several hospitals
with a significant amount of money tied up in the appeals
process for far longer than the statute contemplates, seek a
writ of mandamus compelling the Secretary to act within
those time frames. Although Plaintiffs disclaim any desire or
authority to force the Secretary to curtail the audit program or
take any other particular action to meet the deadlines, the
record suggests that absent further congressional action, the
Secretary would likely have to drastically curtail that program
to comply with such an order. The district court concluded
that mandamus relief was unwarranted, noting the political
branches’ ongoing efforts to resolve this tension and the audit
program’s success in detecting improper payments. For the
reasons set forth in this opinion, we reverse and remand with
instructions to the district court to consider the problem as it
now stands—worse, not better.
                               3


                               I.
     After a hospital or other health-care provider performs
Medicare-eligible services, it submits a claim for
reimbursement to a Medicare Administrative Contractor
(MAC). 42 U.S.C. §§ 1395ff(a)(1)–(2), 1395kk-1(a); 42
C.F.R. §§ 405.904(a)(2), 405.920–405.928. The MAC decides
whether to pay or deny the claim. If a claim is denied, the
Medicare Act provides a four-level administrative appeal
process, followed by judicial review. At the first level, the
health care provider presents its claim again to the MAC for
“redetermination.” 42 U.S.C. § 1395ff(a)(3)(A), (a)(3)(C)(ii).
The second level involves “reconsideration” by a Qualified
Independent Contractor (QIC). Id. § 1395ff(c). The Centers
for Medicare and Medicaid Services (CMS) oversees initial
determinations and redeterminations by the MACs, as well as
reconsiderations by the QICs.

     If the provider remains unsatisfied, and if its claim
exceeds $150, it may continue to the third stage: de novo
review by an administrative law judge, including a hearing.
Id. § 1395ff(b)(1)(E)(i), (b)(1)(E)(iii), (d)(1)(A); 42 C.F.R.
§ 405.1006(b); 80 Fed. Reg. 57,827, 57,827 (2015). This
stage of the process is overseen by the Office of Medicare
Hearings and Appeals (OMHA), which houses ALJs and their
support staff, and which is funded by a separate appropriation.
See Medicare Prescription Drug, Improvement, and
Modernization Act of 2003, Pub. L. No. 108-173, § 931, 117
Stat. 2066 (requiring the Secretary to create an
“administrative office that is organizationally and functionally
separate from [CMS]” to “assure the independence of
administrative law judges”). The fourth and final
administrative stage involves de novo review by the Medicare
Appeals Council, a division of the Departmental Appeals
Board (DAB). Although the DAB has authority to hold a
                                4
hearing, it does so only if “there is an extraordinary question
of law/policy/fact.” Mot. for Summ. J. Ex. 2, at 118. Finally,
after completing the administrative appeal process, providers
may seek review in district court of claim denials worth at
least $1,500. 42 U.S.C. § 1395ff(b)(1)(E)(i), (b)(1)(E)(iii); 42
C.F.R. § 405.1006(c); 80 Fed. Reg. at 57,827. We apologize
to our readers for all of the acronyms, but this is, after all, a
Medicare case, and acronyms seem integral to the parties’
native language.

     To prevent appeals from lingering unresolved, the statute
includes specific time frames for each step of the process. In
particular, redetermination by the MACs “shall be concluded”
within sixty days, 42 U.S.C. § 1395ff(a)(3)(C)(ii), and, with
exceptions not relevant here, QICs “shall conduct and
conclude” reconsiderations within sixty days, id.
§ 1395ff(c)(3)(C)(i). Similarly, ALJs “shall conduct and
conclude a hearing . . . and render a decision” within ninety
days, id. § 1395ff(d)(1)(A), although the appealing provider
may “waive” this “deadline,” id. § 1395ff(d)(1)(B). And
finally, the DAB “shall conduct and conclude a
review . . . and make a decision or remand the case to the
administrative law judge for reconsideration” within ninety
days. Id. § 1395ff(d)(2)(A). If all these time periods are met,
appeals will work their way through the administrative
process within about a year.

     The statute also prescribes “consequences of failure to
meet” several of the statutory “deadlines.” In a process
commonly referred to as “escalation,” a provider that has been
waiting for longer than the statutory time limit may advance
its appeal to the next stage. Thus, a provider may “escalate”
its appeal to the ALJ stage if the QIC fails to act within the
required sixty days, id. § 1395ff(c)(3)(C)(ii), to the DAB
stage if the ALJ fails to act within the required ninety days, id.
                               5
§ 1395ff(d)(3)(A), and to district court review if the DAB
fails to act within the required ninety days, id.
§ 1395ff(d)(3)(B).

     For years, the administrative appeal process functioned
largely as anticipated, with its various stages typically
completed within the statutory time frames. American
Hospital Ass’n v. Burwell, 76 F. Supp. 3d 43, 46 (D.D.C.
2014). Then, in 2010, the Secretary fully implemented the
Medicare Recovery Audit Program, which Congress had
required the Secretary to set up “for the purpose of identifying
underpayments      and      overpayments      and     recouping
overpayments.” 42 U.S.C. § 1395ddd(h)(1). Specifically,
Congress directed that the Secretary “shall enter into contracts
with recovery audit contractors” (RACs), who must be paid
“on a contingent basis for collecting overpayments” and “in
such amounts as the Secretary may specify for identifying
underpayments.” Id. § 1395ddd(h)(1)(B). Although Congress
also specified certain other features of the program, such as
that it must have “[n]ationwide coverage,” id.
§ 1395ddd(h)(3), it left the Secretary broad discretion to
determine many other program details.

     The RAC program has had two primary effects. First, the
government has recovered a great deal of improperly paid
money. According to the Secretary, “[i]n 2012, the program
identified $2.3 billion in overpayments, and in fiscal year
2013, the recovery auditors identified and corrected $3.65
billion in overpayments.” Appellee’s Br. 8–9 (footnotes
omitted). In 2012, the Secretary adds, “only 7% of claims
identified by audit contractors as overpayments were
challenged and overturned on appeal,” and only 9.3% were in
2013. Id. at 9.
                               6
     But because RAC denials are appealable through the
same administrative process as initial denials, the RAC
program has contributed to a drastic increase in the number of
administrative appeals. Thus, the number of appeals filed
ballooned from 59,600 in fiscal year 2011 to more than
384,000 in fiscal year 2013. Mot. for Summ. J. Ex. 7, at 4.
Although the Secretary explains that other factors, such as
“increased utilization of Medicare-covered services,” have
played a role in increasing the number of appeals filed,
Appellee’s Br. 9, the government acknowledged at oral
argument that 46% of the appeals currently pending before
OMHA originated from the RAC program. Oral Arg. Tr. 35.

     Between RAC and non-RAC appeals, OMHA currently
receives many more cases than it can process in a timely
fashion. Indeed, every two months or less, it receives as many
appeals as it can process in a full year. Appellants’ Br. 12. As
of February 2015, the decisions ALJs were releasing had been
pending for an average of 572 days. Appellee’s Br. 10. This
number will almost certainly continue to grow as the backlog
worsens.

    The Secretary has worked to address the backlog and
corresponding delays. As a result of various reforms, the
number of appeals the average ALJ resolves each year has
more than doubled since 2009. Mot. for Summ. J. Ex. 7, at 4.
Moreover, the agency secured funding for seven additional
ALJs and associated staff in fiscal year 2014—an increase of
about 10% over previous staffing levels. Id. at 5.

    Despite these additional resources and significant
improvements, the Secretary and OMHA find themselves in
an untenable position. OMHA still has the capacity to process
only about 72,000 appeals per year, a far cry from the almost
400,000 appeals it received in fiscal year 2013, or from the
                               7
over 800,000 appeals that composed its backlog in July 2014.
Id. These figures suggest that at current rates, some already-
filed claims could take a decade or more to resolve. Bowing
to this reality, in December 2013, OMHA’s Chief ALJ sent a
memorandum informing various hospitals that OMHA had
temporarily suspended assigning appeals to ALJ dockets, that
the suspension would last “at least 24 months,” and that the
agency “expect[ed] post-assignment hearing wait times
[would] continue to exceed 6 months.” Mot. for Summ. J. Ex.
3, at 1. The DAB stage is also plagued by delays, although not
quite to the same degree. E.g., Mot. for Summ. J. Ex. 7, at
107, 111.

     Congress is fully aware of both the backlog and its
connection to the RAC program. The Senate Finance
Committee has held multiple hearings on the issue, dating
back to at least July 2013. Indeed, although at a 2015 hearing,
Senator Orrin Hatch, the committee chairman, expressed
concern over the lengthy delays, he recognized that OMHA
“has also taken steps to address its backlog, but there is only
so much the agency can do with their current authorities and
staffing.” See Hatch Statement at Finance Hearing on
Medicare Audit and Appeals (Apr. 28, 2015),
http://www.finance.senate.gov/chairmans-news/hatch
-statement-at-finance-hearing-on-medicare-audit-and-appeals.

     Moreover, the Senate is considering a bill known as the
“AFIRM Act,” which would provide $125,000,000 in
additional annual funding for OMHA, as well as make other
reforms to the appeal process designed to address the backlog.
AFIRM Act, S. 2368, 114th Cong. (2015). If enacted, this
legislation might go some way toward resolving the problems.
As of yet, however, the bill remains only a bill, and the delays
continue.
                              8
     If the vast majority of these delayed appeals were
ultimately denied, they might amount to little more than an
unfortunate nuisance. The record suggests, however, that
many have merit. Hospitals responding to a survey conducted
in 2014 by one of the plaintiffs in this case, the American
Hospital Association, reported that they had appealed 52% of
RAC denials, and that 66% of these appeals that had been
completed were successful. Mot. for Summ. J. Ex. 5, at 55.
The Secretary quibbles with the details of this statistic—and
we acknowledge the obvious self-selection and bias
problems—but even government counsel conceded at oral
argument that 43% of ALJ appeals (including from RAC and
non-RAC denials) succeed. Oral Arg. Tr. 37. This reversal
rate is hardly negligible.

     The delays at the ALJ stage are especially harmful to
hospitals because HHS recoups funds after the QIC stage. 42
U.S.C. § 1395ddd(f)(2)(A). Given hospitals’ frequent success
at the ALJ level, this means that they are often deprived of
access to significant funds to which they are entitled. This
problem takes a particular toll on hospitals with a large share
of patients who rely on Medicare.

     Plaintiffs in this case, three such hospitals or hospital
systems and the American Hospital Association (collectively,
the “Association”), filed suit in United States district court
seeking relief in the nature of mandamus under 28 U.S.C.
§ 1361 (which, for ease of reference, we refer to simply as
“mandamus”) to “compel the Secretary . . . to meet the
statutory deadlines for administrative review of denials of
claims for Medicare reimbursement.” Compl. at 1. The three
hospitals or hospital systems are (1) Baxter Regional Medical
Center, a 268-bed regional hospital in Arkansas that derives
65% of its gross revenue from Medicare, Holleman Decl.
¶¶ 5–7; (2) Covenant Health, a community-owned health
                               9
system of hospitals in Tennessee that derives 55% of its gross
revenue from Medicare, Geppi Decl. ¶¶ 5, 8; and (3) Rutland
Regional Medical Center, a community-owned 188-bed
hospital in Vermont that derives 47% of its revenues from
Medicare, Wallace Decl. ¶¶ 6, 10. All three allege that they
have significant funds tied up in the Medicare appeals
process—including in appeals that have already exceeded the
statutory time frames—and that their inability to access these
funds makes a number of essential activities, such as
replacing ICU beds, difficult or impossible. All three report
that the inability to access the money makes it more difficult
to provide adequate care, and at least Baxter and Covenant
say they may stop offering certain services if the system is not
fixed.

     The Association sought summary judgment in the district
court, and the Secretary moved to dismiss for lack of
jurisdiction. The district court concluded that the
jurisdictional and merits questions merged, and thus resolved
both motions at once. The district court denied the
Association’s motion for summary judgment and granted the
Secretary’s motion to dismiss for lack of jurisdiction,
concluding that the agency’s delay was not so unreasonable as
to justify mandamus. In doing so, the district court concluded
as follows: “The Court hopes that the Secretary and Congress
will continue working together toward a solution and that
OMHA will receive the resources necessary to fulfill its
obligations. Hospitals that are owed reimbursement should
not be indefinitely deprived of funds. The Court cannot
predict whether, over time, if HHS and Congress cannot
adequately address the overflow of appeals, the [analysis]
might shift toward Plaintiffs.” American Hospital Ass’n, 76 F.
Supp. 3d at 56.

    This appeal followed.
                               10


                               II.
     “The remedy of mandamus is a drastic one, to be invoked
only in extraordinary circumstances.” Power v. Barnhart, 292
F.3d 781, 784 (D.C. Cir. 2002) (internal quotation marks
omitted). To show entitlement to mandamus, plaintiffs must
demonstrate (1) a clear and indisputable right to relief, (2) that
the government agency or official is violating a clear duty to
act, and (3) that no adequate alternative remedy exists. United
States v. Monzel, 641 F.3d 528, 534 (D.C. Cir. 2011). These
three threshold requirements are jurisdictional; unless all are
met, a court must dismiss the case for lack of jurisdiction. See
In re Medicare Reimbursement Litigation, 414 F.3d 7, 10
(D.C. Cir. 2005) (internal quotation marks and alteration
omitted). “Even when the legal requirements for mandamus
jurisdiction have been satisfied, however, a court may grant
relief only when it finds compelling equitable grounds.” Id.
“The party seeking mandamus has the burden of showing that
its right to issuance of the writ is clear and indisputable.”
Power, 292 F.3d at 784 (internal quotation marks omitted).

     Mandamus claims that, like this one, target agency delay,
turn on “whether the agency’s delay is so egregious as to
warrant mandamus.” In re Core Communications, Inc., 531
F.3d 849, 855 (D.C. Cir. 2008) (internal quotation marks
omitted). In such cases, courts are guided by the “TRAC
factors,” so named because they come from our decision in
Telecommunications Research & Action Center v. FCC.
These factors are as follows:

    (1) the time agencies take to make decisions must be
    governed by a rule of reason; (2) where Congress has
    provided a timetable or other indication of the speed
    with which it expects the agency to proceed in the
    enabling statute, that statutory scheme may supply
                             11
    content for this rule of reason; (3) delays that might
    be reasonable in the sphere of economic regulation
    are less tolerable when human health and welfare are
    at stake; (4) the court should consider the effect of
    expediting delayed action on agency activities of a
    higher or competing priority; (5) the court should
    also take into account the nature and extent of the
    interests prejudiced by delay; and (6) the court need
    not find any impropriety lurking behind agency
    lassitude in order to hold that agency action is
    unreasonably delayed.

Telecommunications Research & Action Center v. FCC
(TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984) (internal quotation
marks and citations omitted). Although these factors provide
guidance by setting out “the hexagonal contours of a
standard,” we have been careful to emphasize that they are
“hardly ironclad,” id., and that “[e]ach case must be analyzed
according to its own unique circumstances,” Air Line Pilots
Ass’n v. Civil Aeronautics Board, 750 F.2d 81, 86 (D.C. Cir.
1984).

     We have never squarely addressed the interplay of the
three threshold mandamus requirements—clear duty, clear
right to relief, and absence of an adequate alternative
remedy—and the six TRAC factors. Because these factors
function not as a hard and fast set of required elements, but
rather as useful guidance as to whether a delay is “so
egregious as to warrant mandamus,” TRAC, 750 F.2d at 79,
their roles may differ depending on the circumstances. For
example, in situations where plaintiffs allege that agency
delay is unreasonable despite the absence of a specific
statutory deadline, the entire TRAC factor analysis may go to
the threshold jurisdictional question: does the agency’s delay
violate a clear duty? By contrast, in situations where the
                              12
statute imposes a deadline or other clear duty to act, the bulk
of the TRAC factor analysis may go to the equitable question
of whether mandamus should issue, rather than the
jurisdictional question of whether it could.

     Here, the district court recognized the unsettled
relationship between jurisdictional and merits questions in
mandamus suits. American Hospital Ass’n, 76 F. Supp. 3d at
49–50. Guided in part by our precedent outside of the agency-
delay context, the district court concluded that the
jurisdictional and merits inquiries “merge[d],” and that “the
dual nature of the inquiry” allowed it to “resolve Plaintiffs’
Motion for Summary Judgment together with Defendant’s
Motion to Dismiss for Lack of Jurisdiction.” Id. at 50 (internal
quotation marks omitted). Accordingly, after analyzing the
TRAC factors, the district court denied Plaintiffs’ summary
judgment motion and granted the Secretary’s motion to
dismiss for lack of jurisdiction.

     In our view, however, the distinction between the
jurisdictional inquiry and the equitable merits inquiry matters,
especially because it affects our standard of review. We
review the threshold requirements for mandamus jurisdiction
de novo. In re Medicare Reimbursement Litigation, 414 F.3d
at 10. But we review “the equities” for abuse of discretion. Id.
Accordingly, we first consider the threshold jurisdictional
question, and then turn to the equities.

                              A.
    At the outset, we must determine whether, as the
Association argues, the statutory time frames are mandatory
deadlines. According to the Association, the statute imposes
mandatory duties by providing that certain actions “shall”
occur within specified time frames. As the Secretary sees it,
however, the opportunity for providers to escalate appeals
                              13
deprives the district court of jurisdiction to issue mandamus,
either because escalation demonstrates the lack of a statutory
duty or because it provides an adequate alternative remedy. In
the unique circumstances of this case, we agree with the
Association.

     To begin with, as to clear duty, the statute uses the
typically mandatory “shall.” E.g., 42 U.S.C. § 1395ff(d)(1)(A)
(“[A]n administrative law judge shall conduct and conclude a
hearing . . . and render a decision on such hearing” within
ninety days. (emphasis added)). To be sure, as the Secretary
points out, context can dictate that “shall” take a directory
rather than a mandatory meaning. But here, context only
reinforces a mandatory reading. The statute itself repeatedly
refers to the time frames as “deadlines.” E.g., id.
§ 1395ff(d)(1)(B). And the provision permitting “[w]aiver of
deadline by party seeking hearing,” id., would lack meaning if
the agency had no obligation to comply with the deadline in
the first place.

    The Secretary argues that by permitting escalation,
Congress acknowledged that the time frames would
sometimes remain unmet, thus suggesting that Congress did
not view them as mandatory. Appellee’s Br. 19–20. The
Secretary’s premise fails to support her conclusion. Merely
providing a consequence for noncompliance does not
necessarily undermine the force of a command.

     The argument that escalation provides an adequate
alternative remedy is somewhat stronger. If delays occurred
only in isolated or occasional cases, escalation might suffice.
Indeed, we agree with the Secretary that Congress’s inclusion
of the remedy in the statutory scheme indicates that Congress
anticipated that violations might occur with some measure of
regularity. That said, nothing suggests that Congress intended
                              14
escalation to serve as an adequate or exclusive remedy where,
as here, a systemic failure causes virtually all appeals to be
decided well after the statutory deadlines.

     In some circumstances, of course, distinguishing between
violations that escalation can adequately address and those it
cannot might be difficult. The systemic failure at issue in this
case, however, presents no such line-drawing dilemma.
Escalation from the ALJ stage to the DAB stage is unlikely to
provide a timely hearing. Not only does the DAB itself have a
backlog, but it holds hearings only where an “extraordinary
question” is involved.

     Nor does further escalation to district court suffice. As
the government acknowledged at oral argument, district court
review would be deferential, Oral Arg. Tr. 28, hardly an
adequate substitute for a de novo hearing before an
administrative law judge.

     Alternatively, the Secretary argues that she has no clear
duty because the action the Association seeks mandamus to
compel is discretionary rather than ministerial. As the
Association points out, however, although both the content of
the administrative appeal decisions and the means the
Secretary uses to ensure they are reached in a timely fashion
are discretionary, the Association formally seeks to compel
neither. Rather, it simply seeks to compel the Secretary to
make decisions within the statutory time frames. Appellants’
Reply Br. 6. The Secretary insists that the Association’s
request constitutes a “programmatic attack” on the way her
department manages its resources, that the department lacks
the resources to render decisions within the statutory time
frames, and that even if it had the necessary resources, we
should hesitate to reorder agency priorities in such a manner.
The Supreme Court, however, has distinguished
                              15
impermissible “programmatic attack[s]” from “the failure
to . . . take some decision by a statutory deadline,” Norton v.
Southern Utah Wilderness Alliance, 542 U.S. 55, 63–64
(2004), the very failure the Association challenges here.

     In making her “programmatic attack” argument, the
Secretary emphasizes that many agency delay cases involve
one or a small number of decisions, rather than the countless
administrative appeals at issue in this case. Appellee’s Br. 27.
In the presence of a clear statutory deadline, however, the
scope of the program involved goes to “the equities” of
granting mandamus rather than to the threshold jurisdictional
question of whether a clear duty exists. Indeed, this court has
made clear—albeit in a case denying mandamus relief—that
“[h]owever many priorities the agency may have, and
however modest its personnel and budgetary resources may
be, there is a limit to how long it may use these justifications
to excuse inaction in the face of” a statutory deadline. In re
United Mine Workers of America International Union, 190
F.3d 545, 554 (D.C. Cir. 1999). And in another case, we
strongly suggested that we would have granted mandamus to
require an agency to make over a dozen delayed decisions had
the agency not convinced us that it had resolved the
underlying issues and was quickly working through its
backlog. In re American Federation of Government
Employees, AFL-CIO, 790 F.2d 116 (D.C. Cir. 1986).

    Finally, our decisions in In re Barr Laboratories, Inc.,
930 F.2d 72 (D.C. Cir. 1991), and Mashpee Wampanoag
Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir.
2003)—both relied on by the Secretary—are not to the
contrary. In these cases, we rejected mandamus claims that
would have had the effect of allowing the plaintiffs to jump
the line, functionally solving their delay problem at the
expense of other similarly situated applicants. To be sure, the
                              16
complaint in this case does seek this type of relief, see Compl.
Prayer for Relief (b)(i), (b)(ii), which we agree our precedent
forecloses. But the complaint also requests the broader relief
of “requiring HHS to otherwise comply with its statutory
obligations in administering the appeals process for all
hospitals.” Id. (b)(iii). The line-jumping cases of Barr Labs
and Mashpee Wampanoag Tribal Council neither speak to nor
preclude such relief.

     We thus conclude that the statute imposes a clear duty on
the Secretary to comply with the statutory deadlines, that the
statute gives the Association a corresponding right to demand
that compliance, and that escalation—the only proposed
alternative remedy—is inadequate in the circumstances of this
case. Because the Association has demonstrated that the
threshold requirements for mandamus jurisdiction are met,
and because the Secretary’s other jurisdictional arguments
fail, we reverse the district court’s dismissal for lack of
jurisdiction.

                              B.
     On remand, the district court should determine whether
“compelling equitable grounds” now exist to issue a writ of
mandamus. The court appears to have considered this
question as it stood in late 2014 as part of its merged
jurisdictional and merits inquiry, but the record on appeal
makes clear that the situation has worsened—something the
district court will need to account for as it applies the TRAC
factors. Although the difficult decision of when to issue the
extraordinary writ rests in the first instance with the district
court, given the large number of federal agencies within our
jurisdiction and the importance of ensuring the application of
uniform mandamus standards, we think it helpful to set out
the factors that weigh most strongly for and against
mandamus in this case.
                              17

     Perhaps counseling most heavily against mandamus is the
writ’s extraordinary and intrusive nature, which risks
infringing on the authority and discretion of the executive
branch. These risks are especially salient here because
mandamus would, in effect, probably require the agency to
make major changes to its operations and priorities, including
drastically limiting the scope of a statutorily mandated
program that has recovered billions of dollars in incorrectly
paid funds. Moreover, as the district court properly noted,
Congress’s awareness of and attention to the situation counsel
against issuance of the writ. American Hospital Ass’n, 76 F.
Supp. 3d at 56. So too, we think, does the fact that Congress
has provided escalation as a remedy, even though that remedy
may offer less than full relief. Escalation might inform the
district court’s analysis of whether the delay is egregious
enough to warrant the grant of mandamus relief, even if it
does not preclude mandamus jurisdiction altogether. Finally,
the district court also correctly concluded that the Secretary’s
good faith efforts to reduce the delays within the constraints
she faces—such as by implementing reforms that have
doubled ALJ efficiency—push in the same direction. Id. at
55–56. The backlog and delays have their origin in the
political branches, and ideally the political branches should
resolve them.

     On the other hand, several significant factors counsel in
favor of mandamus. To begin with, the record demonstrates
that the delays are having a real impact on “human health and
welfare.” TRAC, 750 F.2d at 80. For example, one plaintiff,
Baxter Regional Medical Center, submitted a declaration
explaining that having money tied up in the appeals process
beyond the statutory deadlines makes it much more difficult
to purchase replacement ICU beds, replace (rather than patch)
a roof over its surgery department, and replace a twenty-year-
                               18
old catheterization lab which will “soon need to be shut
down.” Holleman Decl. ¶¶ 14–15. Likewise, amicus the Fund
for Access to Inpatient Rehabilitation reports that the delays
have led at least one rehabilitation hospital to “avoid
admitting certain types of patients, regardless of whether its
staff believes the patients meet the coverage criteria for
rehabilitation hospital care, if those patients have indicia
within their medical records that are likely to trigger an
audit.” Amicus Br. 28. These consequences—none of which
the government challenges—are unsurprising; common sense
suggests that lengthy payment delays will affect hospitals’
willingness and ability to provide care.

     Moreover, and critically to our thinking about this case,
although Congress directed the Secretary to establish the RAC
program, it has left her with substantial discretion to
implement it and determine its scope. 42 U.S.C.
§ 1395ddd(h). True, Congress seems to approve of the way
the Secretary has implemented the program, and the agency is
entitled to some leeway to resolve the tension between
competing priorities. If it fails to do so, however, and if
Congress fails to act, either by providing the Secretary
sufficient resources to comply with the clear statutory
deadlines it has already enacted or by relieving her of the
obligation to do so, these deadlines dictate that the Secretary
will have to curtail the RAC program or find some other way
to meet them. Federal agencies must obey the law, and
congressionally imposed mandates and prohibitions trump
discretionary decisions.

     All that said, we reiterate that the district court has broad
discretion in weighing the equities and deciding “whether the
agency’s delay is so egregious as to warrant mandamus.”
Taking the above factors into account, the district court—
more than a year after its first denial and with the problem
                               19
only worsening—might find it appropriate to issue a writ of
mandamus ordering the Secretary to cure the systemic failure
to comply with the deadlines. On the other hand, if the district
court determines on remand that Congress and the Secretary
are making significant progress toward a solution, it might
conclude that issuing the writ is premature. If so, it could
consider such action as ordering the agency to submit status
reports updating the court on the level of appropriations, the
progress of the AFIRM Act, and any other relevant
information.

     In the end, although courts must respect the political
branches and hesitate to intrude on their resolution of
conflicting priorities, our ultimate obligation is to enforce the
law as Congress has written it. Given this, and given the
unique circumstances of this case, the clarity of the statutory
duty likely will require issuance of the writ if the political
branches have failed to make meaningful progress within a
reasonable period of time—say, the close of the next full
appropriations cycle. Cf. In re Aiken County, 725 F.3d 255,
258–59 (D.C. Cir. 2013) (granting mandamus after Congress
failed to take advantage of a previous order holding the case
in abeyance to give Congress the chance to “clarify”
potentially conflicting signals on whether it wanted the
Nuclear Regulatory Commission to expend appropriated
funds on activities related to storing nuclear waste at Yucca
Mountain).

                              III.
     We reverse the district court’s dismissal for lack of
jurisdiction and remand for further proceedings consistent
with this opinion.

                                                    So ordered.
