council mr bradley please perceive an erratic good morning and may please the court i'm keith bradley representing the hospitals in this case the previous proceedings involved a serious jurisdictional error in which the district court asserted jurisdiction to decide the merits of claims that the board had never considered today i'd like to make three things clear st that jurisdictional defect is important it would be valuable for the court to make plain that the secretary cannot wave a jurisdictional prerequisite the congress assigned to the board nd the hospitals are not engaged in gave they had nothing to gain from waiting to see how the merits of the appeal would turn out for raising and denied expedited judicial review e j are the district court d then found that the legal issues satisfy the krycek area free jr and concluded that it had jurisdiction under the e j r provision underline  possible it would have to be the case that a board merits decision is not a jurisdictional d necessity if it were the government couldn't wave it and in fact a judge has told every other court d so far as we can find that a board decision is don't well i don't think it was arguable  my assumption was that the attorney had come here in good faith and made was a reasonable but but you now think mistaken argument about this and resolve jurisdictional question now you tell me it wasn't even reasonable like i don't i don't think it rose to the to the level of ruhleben by any means to be should it but you tell me it wasn't even reasonable no i don't think it was reasonable either side no i'm not i guess i'm asking you to talk to your clients are absolutely absolutely understood when reasonable ok i don't think it was reasonable we have now at the benefit obviously thinking about it much later length than we had had in the pressures of the time and if as with as much as we read about this since then issued that order asking us to discuss it and mr bradley the the district court in the st go round issued an order a final judgment that applied not only to the to the parties that had that had we had jurisdiction over but also everybody in the case and the judgment was own the merits correct correct correct and and then when the panel heard the case the final judgment of the panel was to affirm that ruling by the for us for this panel to disagree with that would be a violation of the law of the circuit number one and a violation of the law of the case number two isn't that correct but let me explain the analogy when we have a standing case if we have twenty parties and one of them has standing we don't care whether the other nineteen do or not but when we ren decision involving all twenty all twenty of those parties are bound by that decision what's the difference between what happened in the st go around in this court and  sort of a situation which happens in a rather commonly in this we we have explored what would happen what happens after that is if you and i want to be clear also the d decision in billings is binding precedent for what the court said about the mirror you know the court said very thing that is all binding precedent for everybody but with respect to it being law of the case or reclusive or other aspects like that binding on the party specific fashion that you just suggested we have searched and we have not found cases plying that effect to the other nineteen parties now it does not often happen the case in the circumstances case are a little bit unique in that it does not often happen that once the panel what's the court has issued actually they're actually they're not very unique i mean it's very close to the decision of our court in bank in la shawn many many years ago i mean two decades ago and in which we held that the blow of the case and law of the circuit accent are also applied to jurisdiction determinations it does but i submit that it was shawn you wrote that it applies to decisions made by necessary implication whereas here the penalty d it cannot be necessarily imply because the panel explicitly said they were not deciding  you in addition the case after a wish on a cult independent petroleum producers association of america in which the court proceeded to decide a jurisdictional question that had not been settled by the previous case there had been two parties you know in it before the court in the previous case and the court in the subsequent decision proceeded to say yes but that's only things that are there are necessarily implied and since it was not necessarily implied in that previous decision we had here the other the authority to to decide the jurisdiction question that has come squarely before us and then independent probably association d were then decided that and the nd party there had been addressed action where you should have applied for rehearing or rehearing in bank a fessor position after the initial the system by the court of appeals because you lost on the merits even though the court made no determination about whether it had jurisdiction over you that's the same thing isn't standing if you had a problem with that then the your only recourse was to petition for certiorari rehearing into either one ok now you're  problems with the decision on the merits as well and for all of these hospitals that were there and had to jurisdictional defect they also had within the limited space confines of a rehearing petition something that needs to be said and then defect namely a motion under rule sixty four dollars which is exactly what we did so because of strategic choices about how to use your word limit you didn't write that every hearing and waited i think two more years to file a finish my sentence so you are aware that you had your nine months now to think about it so you are aware of the jurisdictional problem but you had the folks that for which there was jurisdiction and dispiritedly and they wanted to raise merits issues and so a strategic decision was aware and i you know in the nine months i don't want to assert to you that we could not a figure that out so i don't mean to suggest that we did make a strategic decision simply that in the circumstances it would not be  i submit that it would not make sense to require that parties go through the rehearing process rather than through the rule sixty process that is that out in the rules the other thing i'd like to see point out about this is that if it is a practical matter it would not have made any would have been binding precedent whether for good effect or it happened for ill effect and in fact these same parties many of them are litigating claims involving some of the same holes in the just record blow right now that a relief the clarity relief injunctive relief that's going to control their case their position there's nothing more to be done and so let's say you're right and so we grant we agree with you it's vacated or a mandate whatever whatever when we send it back to the district court and it's dismissed from there and you go back before the board on the board gives you the jr and then you go back to the district co you would you agree that this or course decision is going to be completely controlled by the billings decision of that point as a matter of as a matter of circuit precedent yes believes is going to be binding for us in the district court so it's a fair question why do we want to do this there are in the in the court although we are little gating for their betters but some of the symbols we believe that there is more to be said about them for there are matters like different arguments different arguments and it is outside the record so but  these years you're clearly bound by race judicata if you you sought summary judgment in the district court the st round you cross moved and so you had your chance there to raise all the arguments that you are some important ones and are you are you saying that any further proceedings of every step that you need to go through were gotten through what happened in the district court here are without regard to your ability to bring a claim somewhere else or aren't our intent is to bring them back up to the district court we would probably we could not obviously i don't want to commit for that judge that for that or that it would accept them into the same case as a matter of really cases or that they would get consolidated but that's that is what we would do seek to do of my colleagues have any further questions for you will hear from the government mr thank you your honor benjamin shelton behalf of the government in the original litigation the plaintiffs insisted that this court and the district court properly could exercise jurisdiction over all plaintiffs and this court ultimately concluded that it didn't need to resolve the jurisdictional question and it affirmed the district court's judgment in full because this court concluded that it could have from the judgment in full without need to resolve the jurisdictional question that the plaintiffs are now presenting billings clinic can be the beginning and end of this case because billings clinic shows that the judgment could be affirmed without need to address this jurisdictional question at a minimum of void judgment cannot be a judgment that the court of appeals says can be a firmed whether or not there was jurisdiction even if this court doesn't want to go that route and we think that's just a simple easy way to do this even if this court doesn't want to go that route it can also apply general principles of rule sixty before this court held in the delta foods case that even in a rule sixty four motion if a party had a fair opportunity to attack jurisdiction the st time around and simply declines to do so then that party cannot attack jurisdiction in a rule sixty four motion except perhaps in some very very narrow circumstances which are far afield from the circumstances of this case the case is actually an easier case than delta foods because not only did the plaintiffs have a fair opportunity reach that but if the court would like to i'm happy to do it i'm also happy to talk about mandamus if the court has questions there but i think it's pretty clear that the district court in this case did issue a full and complete judgment that resolves a hyams so there is nothing to mandamus and unless the one million without one actually a recent case that was decided in one thousand eight hundred and seven chief justice marshall and it's a case where it went up on appeal and the it was a diversity of citizenship case as i recall and so it goes up on appeal the the party of the plaintiff lost in the district court with goes up on appeal the plan have said well although we invoke diversity jurisdiction and last there really was no jurisdiction and the question was whether whether the losing party is permitted there to raise that jurisdictional claim when that's the party that invoked jurisdiction how would you modern civil rules so i think at least one way to distinguish it is we currently have rule sixty before that would be the vehicle that they would use to attach jurisdiction and this court would apply rule sixty four jurisprudence in a way that wouldn't have been true in we do have a safety before motion that the district court disposed of and the denial of which has been appealed to us right so we have to apply some standard for sixty before your st round again as what and response to the fact that there is a sixty before motion that leon so to get sixty before relief the st step is you have to show that the judgment is void which means that there is some sort of fundamental infirmity our initial position is there is not even any infirmity because this court has are covered by sixty four yes we did do the supreme court case law talks about kind of three different categories of things one is and there's different terminology but i think it's more or less the same thing one is talks about like a manifest lack of jurisdiction which you know may be the same as there was an even an arguable basis for jurisdiction and then there's two other really narrow exceptions about when there may be another tribunals and you're substantially infringing on it  and then there's i think a rd exception which i'm sorry that if the if the original court was incapable of resolving the jurisdictional question the st time around and we're far afield decision in thirty nine thousand and fifty f one has the same meaning that it has in section four of five g in addition there is certainly case law that says that there are times in which it is appropriate for a court to exercise hypothetical statutory jurisdiction and you know i'm not sure that that's precisely what this court did when it it decided bill are quite clear that we were not exercising your instruction over hypothetical jurisdiction over the other hospitals we just didn't find it necessary to that there can be times in which it is appropriate for a court to resolve the case on the merits despite doubts over statutory jurisdiction and that doesn't read or that judgment void your analogy to the four or five  there a case in which the government agreed to four or five g jurisdiction despite the fact that no one in the agency has addressed a question on the merits of the government agreed or a court has found four or five years diction without any agency decision merits which we didn't have here we didn't need to didn't do that step here the board well i think the the board said that it was going to dismiss the case entirely you had a case that the plaintiff said hey we have a case and the board said no you don't your case dismissed gone totally over well completely different grounds and sure the question of presenting the merits claim the board here never was given the opportunity to look at it and say we think we can decide it or no that's not that's outside our w it up to the court well i think there was a request for expedited judicial review and the board denied it now maybe a tonight it on a different basis rather than you know whether or not it had the authority to rely on it but it did deny their i won one last question just on your threshold law the circuit ground and it's just that is one does that apply any time a court actually addresses jurisdiction so that means of sixty before is just unavailable if of appeals issues a binding decision then that decision is binding until overruled by the circuit on bank or the supreme court and safety before is just unavailable corrective so for example if this court upheld affirmatively that there was  claims into this case where other hospitals that we represent are with getting these some of the same your siblings with respect to the law the case i'd like to quote a little something from a tennis racket case that we put d in our our of the case if this distinction were denied no jurisdictional deficiency could ever escape the precludes the reach of the doctrine that would clearly undermine the will sixty before and contradict many decisions the movement of the rule to overturn counsel will take this case under submission