you know it was largest on appeal we've got the merits here but in the past few days we've had this motion filed by m t c own three man granted but allowance was given to file the response to the motion that was filed with the valve body body so we got there only yesterday and then yesterday we got a motion from  attorney's fees and costs and so on and so forth so since the case was large we've got these other matters so suffice to say because of the immanency of all argument these matters were cared with the case to be dealt with you know a front and center you know hears so we got obviously a pivotal motion to remain to go back down in a way adams with that perhaps we don't have to get to the merits but that probably needs to be a starting we need to deal with this motion as part of your arguments and we'll deal with whatever else we may need to deal with but the point i really want to say you would do it all is with these three judges not another three judges to i'm not going to stand here and use cases cited in the motion remand they say they are well cut cut cut to the chase stand are you filed your response yesterday the front part of it saying is you know they said there was they lower the solo now at the last minute they say there's not now you know and i know that you can't consent to jurisdiction so with condit and met in some ways whether what you say is true and not but the the nub is whether we have jurisdiction or not putting aside whether you know what they did if we got it we read your response but you've got to convince us that we have jurisdiction diversity or subject matter jurisdiction not whether they acquiesced in it dan for we ought to keep it or they didn't warn in good faith and all that stuff the court can no jurisdiction on his own and we have a duty to do there so we've got to be convinced that we have jurisdiction here his case regardless of the louisiana so we had diversity with mississippi then there was a matter about the being federal jurisdiction undertakings going with some but that was all dismissed so the point is to get the point  that we have a jurisdictional nexus here that allows us to get to the merits i would do that yes you have subject matter jurisdiction you always there's two they're run by elected by three elected members of the commission and their website argues they are represent the electorate they don't represent the govern subsumes the others in sovereign immunity if they have sovereign immunity then they're not subject to jurisdiction indeed as you heard mr herbert let me ask you this you refer to judge russell's opinion several times and i don't have the briefing in front of  jurisdiction that was the issue there is miers have subject matter stiction bill so there was a federal question case that was not a diversity case in the issue of the citizenship of  agency there wasn't relevant and so you had your restriction issue as well as sovereign immunity applies you have any diversion case where you're looking at citizenship where you have this waiver issue your own decisions as it plods across the board whether it's federal question force or diversity or citizenship it doesn't make it sanction your case isn't in miers didn't make that distinction at all matter of fact the store said it's broad brush the question was brought up those miers isn't limited to federal question is it limited to the facts of that case and th but if i may i will stretch over exist in the same statute i can't prepare for the court it demonstrably exhibit which shows it came age eleven hour break and it shows the statute as it applies of this point just back twenty years ago when some affidavit was induced some explanation of what legislators were up to and i don't think it was accepted but regardless you have a case that allows this sort of single i mean very convincing th was trying to do but it would case you have a says mississippi would look at that well i have no case because it has not been challenged in t c he did not challenge it it's not challenges that are so i didn't have to it's as the supreme court has noted a flexible and inflexible requirement one that is without exception and so i will turn to the issue of subject matter for six and st as the court is aware there are two potential avenues for subject matters are fiction that are of human pay one dollar being federal question jurisdiction and the other being diversity of citizenship i won't know that much time the issue of federal question jurisdiction because both parties agree that there is no federal question apparent on the we've discussed already said the essential question is whether the state is the real party and interest in the last now there are six factors for determining whether an agency like m c c is an alter ego of the state name this is now done make that distinction i mean you certainly are pretty far along in in saying that these are separate issues but what do you make of how other things or you website and so forth then suggest it as an independent body and not an alter ego of the state so what do you say to those arguments  legislature and the governor detailing the work of the commission and providing a statement of expenditures also the appointment of the executive director by the commission requires the advise and consent of the senate so it cannot be said that the agency is a matter of wide concern that into a legislative legislatively responsible for handling because n p c is an alter ego of the state of mississippi is not a citizen of the state for purposes same point you're in now on september the nd three days ago not than has changed in the apparatus of the state the setup of the state the board the elect even the cases cited nothing absolutely nothing there's been no intervening event by the legislature nothing that has chains since this case guy's story so why is mushrooms out the obvious nine hundred pound elephant of no jurisdiction on september the nd that was so hidden before and i don't mean that as a rhetorical question  so clearly the more of the the citizen a delaware where it's i guess primary corporation or louisiana somewhere so in that in the table there's no disputing dare not they need purposes a mississippi ear we're going to side to side the jurisdictional issue the your position of the state is that m t c is an alter ego of the state of mississippi and that this case turns what's happened in the case so far you have not you but the previous council have not challenge whether it's pro let me take a moment i want to make this point very clear about general of the federal question versus citizenship and regard to this court's own decision invocation of jurisdiction to federal question or any other cases whether it's a da or whatever it's it's it's d a he said here the general back ability of the probably a general rule at that time but this is the law as announced about this circuit that the state can't wait it's are going to be empty which in effect as it did miers ways it's diversity a citizen ship all right in hopefully we'll have all the paper in this case at least at the head to head junction all right interesting case counsel about a sign on a roadway but it any event you can't beat this job