that while fourteen forty seven d by its terms prohibits appeals remain orders that the only remaining orders that cannot be appealed or orders that come within the purview of section twenty eight u s c section fourteen forty seven  that you know well in this court has stated in what infantino versus watson pharmaceuticals that the decision of the supreme court in power exercise a lot energy allows a limited appellate inquiry into confirming whether the district court's characterization that the upon the lack of subject matter jurisdiction is colorable in this case there's no doubt that the district court remanded the case based upon the can the ill conceived conception that there was a worker's compensation claim in the yes so that was embracing the words maybe in artful but if judge smith's question you know points to difficult law it is the text seems pretty absolute and then there's a lot of disagreement in the circuits which is acknowledged by justice scalia and power x but we're pretty far on one side of that split well but this court has also said in setting of a say in fatah knows that no couldn't overrule earlier case law if the supreme court acknowledged that it wasn't deciding the split so we put front no aside if there's an earlier law that says the test in our circuit is did the judge perceive that he or she lacked jurisdiction and the only way th perception does you disagree with me but i'm just stating how one way the looking at the law is the judge would then have to have made a clear statement it wasn't based on a perceived notion that suit such magistrate doesn't well your honor the i think i assume you're referring to the warren tech decision and warren tech is before power and pirates is a subsequent united states supreme court case right but my point is i think i'm right that scalia specifically said we're disagreeing with the dissent but we aren't deciding this once they say they're not designing it it can't give us freedom to overlook earlier case law which has a pretty long pet pedigree right that these are irretrievably lost well of course of what i mean what more in tech says is that the this case you have you have a you do have that you have a clear statement that it's fourteen he's the case is being remanded based on fourteen forty five c and the court the what law could not be clear that forty five forty five c is not jurisdiction i mean moving to the next issue and so on so on jurisdiction on appellate jurisdiction the decisions of the supreme court and of this court make it clear that if they say that fourteen forty seven c does not the case under the foreign sovereign immunity sack they had been dismissed all these took place after removal and the supreme court said will that be the language of the statute means that a post removal event that implicates subject matter jurisdiction falls in fourteen forty seven c it cannot be appealed but in the very next sentence after the crafter the supreme court held that four hundred forty seven c means what it says that the court went on to say that quote this holding requires us to determine whether the ground for the subject matter that the court would have held that the case was could be appealed this is also the course when also went on to state state that quote a case can be properly removed and yet suffer from a failing in subject matter jurisdiction that requires rema emphasizing the words subject matter jurisdiction there's a clear distinction in the statute itself and in the in the opinion of the supreme court in power x between jurisdictional defects that arise after the case is removed and procedural defect a year after the case was removed is subject to appeal is it is an oversimplification to finish please correct me to say that your position is that the fact that the district court says  court were to say for example that the the notice of removal was not filed within thirty days and therefore this court lacked subject matter jurisdiction if a court were to say and i used a somewhat facetiously example in our principal brief you know i'd like to play more golf this year and therefore i like subject matter is your subject matter jurisdiction with the court except those states i think not i mean the and this quite frankly is a step beyond that where you eight you can't turn a non jurisdictional remained into a jurisdictional even just by saying so when when it's when it's as clear as it is in this particular case i suppose an example favoring your position might be a diversity case in which there's some question as to whether the jurisdictional amount is met and the district court thinks it was not and therefore remains for want of jurisdiction that would plainly be a jurisdiction also consistent with a long standing rule that you determine proceed in a procedural propriety for move all at the time the case is removed and the time this case was removed there was no workers compensation for the district court decision in favor of x on holding question that you would use assert it but the claim simply does not exist and similarly there was never been a moment in this case when there was a worker's compensation case after the after the district court decision in state court because at the moment that the court of appeals reverse that decision and enter judgment in favor of the insurance companies of the state of pennsylvania the the merger became a bar and exxon makes arguments about the issues that that remain to be resolved in the state court but that's not the question the question is other issues that remain to be resolved in the fair in federal court and the only issue that exxon ever pled in federal court was for a declaratory judgment that the insurance company of the state of pennsylvania had waited subrogation that exxon would never be able to make that argument again unless at all until and unless the texas supreme court reverses the first court of appeals and of course the fact that the case that case in the case is in the law before the texas supreme court for a for a position for do you could only take place if there was a final judgment i mean the jurisdiction of the texas supreme court is dependent upon there being a final judgment in the court of appeals your your initial time has expired thank you on your side and she said it's a time for  good morning in may it please the court let me just jump right to the fundamental issue in this case and that is the statement by the district court in his remains and order that he was remaining on the bases in jurisdiction i would want him to be of subject sufficient that that the color ability is not an issue in determining whether there's appeal ability the second part of the question is in all candor to the court i do not believe it is jurisdictional the analysis uses i do this firmly believe th it is a procedural defect and that's one of the basis on which we have urged the court to dismiss as case but before getting into even that issue that being that for there be for there for a re ordered to be proper it needs to be timely filed and there's no dispute this was timely filed within thirty days and the second that it was based on a five of a fourteen forty seven c ground and i'm glad to talk about that aspect of it but i think the simpler answer is still the clear statement will go to the fourteen forty seven d bar and review  definitely cement a split correct i would say headed that it would not be the only case because there has been at least three cases out of this court since power acts that applied this principle the fact that there was a procedural defect in that case it was whether a third party could remain and a case under the facts of that case and then it reached the court reached the conclusion after outlining this procedur probably in the other direction i haven't examined that lifted you know what would be if i were doing to do to give a fair ians or to judge but i but it is absolutely clear in this court and i do think it's important to say not only and you're of course absolutely right that the president longstanding present in this court existed before power x but that it's continued to be applied including in published cases two of the cases that we cite in  unpublished but one is published that recites the rule again after our ex and in fact after find no so there is there in some ways and and you can see you know we like appeals as the ability to appeal is appellate lawyer i certainly honor that it's important to to remind the court remind ourselves why this is the case and it's the case because congress made a policy decision and that policy to sit in favor of judicial economy over the ability to have an appeal in this kind of situation the the situations in which this is going to arise i think fairly or one off it's not going to happen i would think never that someone that a district judge would say i'm going to play to play golf but assume it did and that did happen in the handful of times that something like that would happen congress considered that and that's why they said no appeal because it's not worth it we are interested in in judicial economy in the quick resolution of the case and every time the congress didn't say this but the cases do that every time you start an analysis of whether the basis in the order is colorable you're going to have an appeal to lots of clever lawyers who are going to in good faith be able to argue do this court there is a color book playing here so how do you cut that off the way that the that you cut that off and again it's a policy determination by saying that the clear statement rule applies so the clear statement rule applies here if there was only one case for the course to read it is the one kind of your case that i mentioned it is an unpublished case but it is a case that tracks pretty similarly the facts in this case of course there are published there's no final judgment and that's correct but even before getting to the determination that there's no final judgment is that there is no ruling that is race you to a party you just can't say to a court this is race judicata affirmative defense it must be pla proved and that just didn't happen in this case again there is there is the last point on the merits had to do with the finality i'm joe johns i believe that  that it is considered final before the case goes on appeal but once the case is a healed and reverse at that point there is no final judgment and so is that of course is the situation week on the twenty seventh is that this week anyway as you do shortly so as the i and the support has any other questions again we rely on is the simplest basis for dismissal hearing we asked the court  court the court's initial question whether the simple words lack of subject matter jurisdiction means game  over we respect was admitted is not the this court has actually taken a power x look or at least three occasions after the power of decision two thousand and seven actual way also as part of its analysis although perhaps not the main issue in the case it did actually take a  determined that the courts the district court's decision to remain was at least tolerable in ansley it determined that it was definitely not color able that case dealt with a remained based on perceived lack of need for docket coordination or pretrial proceedings and cannot in d l docket and this court a circumstance where the issue in that case and the basis for the remained in the district court's decision to remain the case was clearly color or at least tolerable what this court is faced with  here is not been faced with in those cases is where the magic words lack of subject matter jurisdiction are uttered but the reason the only reason that was explicitly stated for saying that for the for the district court saying there was clearly an on fourteenth forty seven see ground zero i think there's any dispute about that and exxon has acknowledge the remainder is not based on a lack of subject matter jurisdiction exon argues that it was based on a procedural defect that it contends it timely raised with its motion to remain in ju two thousand and fifteen but the key there as to why that's not correct is because you have to look at what was existing at the time of removal in june two thousand and fifteen there was no workers compensation claim in existence at the time of removal in june two thousand and fifteen when exxon filed its motion to remain in july two thousand and fifteen and sided fourteen forty five c in this court's opinion in trading in june of two thousand and fourteen there was no workers comp claim there was no defect on which to to remain and based on fourteen forty five c in the district court agreed with that in detail in his original opinion in december two thousand and fifteen it said there was no worker's comp claim in existence at the time of removal and therefore there was no defect to remain and so what exxon has proposed without any authority is that it may file a motion to remain within thirty days of the removal and have it serve as a placeholder for non existing defects in the event that there's a defect or procedural defect later on that comes into existence now we certainly dispute whether the first court of appeals decision in the roberts lawsuit revived any claims here because again it goes back to the question of was there a worker's comp claim in existence at the time of removal in june of two thousand and thirteen or was not i don't think there's any dispute about that and so the court of the district court when it's a spontaneous remained of the case in november sixteenth based on the first court of appeals reversal in the roberts lawsuit holding as a matter of law that and it didn't revive anything but because there was nothing to revive but but even making that assumption that there was now as of july two thousand and sixteen now the existence a worker's compensation claim in our case which we dispute but assuming there was it's a procedural defect that was it was never raised it could not have been raised within thirty days because it didn't exist at that time that that fact if you want to call it a revival of a worker's comp claim or now making in existence in this case a worker's comp claim it didn't happen until july two thousand and sixteen well thirty well beyond thirty days after the original  and and the and the reason why that's important and why there is you know the underlying policy for root remaining or moving within thirty days only of an existing procedural defect is is really in the slate here the real reason why allow a party to say later on we may move for remain on something that doesn't exist now the case progress like it has here to fully brief summary judgment motions a year and a half after remov board schedule trial and all the sudden it gets pulled back on a procedural issue which was never raised in a motion your in our brief on the merits i believe on page twenty one of the brief we cite on all of the other courts who have taken a different approach than a clear statement approaching its varied from the complete review disregarding what the district court says to a limited review and this this court being on the i think on the most extreme side of the of that spectrum and so we submit this presents a case where cases are under submission and this panel is in recess until wednesday october eleventh at nine o'clock