dash sixteen zero five mccormick versus the united states department of treasury have been official use of the reverse if you will the voluntary what are some examples of beneficial use in the case of north carolina one of the examples of beneficial use is that in addition to an  whole scale full scale effort to find the owners of the bonds the state has statutory authority to use some portion of the bond proceeds to fund higher education scholarships and other aspects of education so if they use those funds some portion of it for that purpose and an actual owner shows up because the owners get one hundred percent of the face value of the bond or they need to get home only the amount that hasn't been mine and then the state goes bankrupt i mean there are stages actually going to take the money i mean they're going to get the bond registered in their name as passion as custody right that's what you want that's one way proceeds the department the treasury now i actually pay you the procession that's what that's part of the s cheap claim under the unclean property statutes in as is done in other examples by the federal government in every other institution in the united states when there are unclaimed funds the funds or provided to the states to hold in custody while they look for the rightful title owner in the meantime some are in the case of savings bonds i don't believe there are coupons or interest so the interest just group you just which is so so it would be the face amount of the bond and whether or not there is any additional interest that's improved because there are differences from one type of savings bond to another type of savings going to so that i'm clear on this and i have the same questions just clevenger but just to make sure and we understand what the basic ground rules are here the difference between the new type of statutory this cheat and the old trades i take it is that the state of north carolina can use that money to fund education or whatever other statutory authorization it has but if i do the face bond holder who has been missing for twenty years should show up in twenty twenty and say where is my my money state in north carolina has imposed upon itself the obligation to pay me whereas i did the also asked him the state of north carolina could say sorry charlie we this is cheated as of the following day and you're outta luck is that what it comes down to essentially that's correct all right so you're you're putting yourself in a position that you're you're keeping the door open to this missing person however unlikely it may be in a particular case if that person will show that's that's what the new statutory structure provides for correct yes chuck it's a case where physically is the bond the piece of paper the savings bond would be somewhere in the position of possession of either the the government doesn't want the case to go back to new jersey new jim acton so to speak the government wants a case to go back to new jersey with instructions to dismiss the case and so the question is do we have authority to dismiss the case that is the question are we are off on the question is whether or not you or with all due respect your jurisdiction is limited so that you were not authorized to instruct the district court i'm better check my notes to make sure it's close enough decided there is no final agency action and you just want me to know that that although it's probably a jurisdictional fact you're prepared to concede no finally this year am i still without power i'm sorry judge i'm prepared to can now soon to represent of argument that on the way into the court your client instruct the year to say that your client had read all the briefs and had decided that there is no final agency action here with regard to your claim against the government that is to say there is no factual predicate for an a p a cause of action own right all it came up here was the transfer or your theory is that the transfer or sends us only one issue and one issue only which is whether the trash order was correct yes or no i think the analysis would be because all you would be doing at your request would be to dismiss an appeal the government's not asking you to dismiss an appeal we're going to dismiss this appeal any this appeal getting dismissed and way because you've all conceded the case doesn't belong but my my problem was i didn't understand why it is that we are completely without stories playing for tells us that we should always address not only our jurisdiction but the jurisdiction of the law with all due respect that's not quite what the supreme court tells you i would submit that what the supreme court tells you is something like what justice scalia or justice ginsburg would say and that is that the government here is trying a drive by jurisdictional rulings the supreme court marbury versus madison and before and that is that your power comes from two sources it comes from the constitution and it comes from statute your statutory power issue sit here today is limited to twelve ninety two the statute i cited you worse your power is limited to looking at the transfer order that's before you one shoot determine that the transfer order is wrong your obligation is to come to a full stop had a transfer or case were transferred yes right now the case was transferred to the court of her claims and there was a challenge to the transfer and we should no transfer or find which were the case should go and the other side said well you can't send it to them because they have no jurisdiction now what did we do we said we'll address that question and will decided in this instance the smart thing to do is to send the case down to court for the cla of action that you found properly belong within the jurisdiction of the court of claims your jurisdiction under twelve ninety two is limited to a yea or nay essentially was the transfer order proper if  you look at some of the other cases that the supreme court has written on this question and that is how for does your jurisdiction and you told me earlier about my duty to satisfy myself that the lower court has jurisdiction is a constitutional in this case it ends before you determine whether or not the district court has jurisdiction of a separate course of action that's not good for you are you saying congress can't congress can tell me that i don't have the authority to decide if a lower decide ted go back to my hypothetical in this case you all have conceded their trash are very correct let's assume both sides agreed that there is no finally this year because there is i think the answer to your question judges because there is no general federal appellate jurisdiction and so congress determines when under what circumstances by statute jurisdiction can be exercised by a court and that's why i referred you to the quote just above more barry versus madison where they say you will the court has always said you have to look for your source of power in two places in the second place the statute that we have before us it's very very narrow it might it might be good to think of it this way if this case had somehow been appealed to the seventh circuit or if any other cases somehow been appealed to the seventh circuit when the seventh circuit have any power to say no jurist no excuse me if with the second seventh circuit have any power to say anything other then this doesn't belong here full stop send it back could they look at something coming from say another district court and not in the seventh circuit say oh this is interesting how can we found this case up here let's take a look at it and in fact that's what happened to this court and again let me let me ask you because i'm jumping in already because the times through you said we have to come to a full stop and just reverse the transfer o correct yes sure does that mean we could not say the order of the district court transferring the case to the court of federal claims reversed the case remanded to the district court which must determine its own jurisdiction that you could not say that judge are you saying we could not say that you could certainly say that i wouldn't to read that as a ruling obviously the district court has to interpret them jurisdiction so you say we could say that refers reflects back to the christiansen's case which this court encountered some time ago where the court in an exercise of truly good faith judge morkie wrote an opinion after having transferred the case to the seventh circuit the seventh circuit transferred back and judge moore he said you know we don't have jurisdiction but the seventh circuit seems to think we do we'll write the opinion as a matter of manifest justice the supreme court said  with all due respect the court was acting with some good faith in good intentions but it had no jurisdiction and it should have retransfer the matter right back to the seventh circuit they had been ridiculed and we will give your full bean and an appeal was taken and judge roy bean transfers the case to the federal circuit now do we really have both the right and the obligation to decide whether judge bean had jurisdiction in the first instance before we send it back to you have to answer that question by looking at twenty eight you see twenty two and in that case just be would not be the yes and to the order is on page twenty seven and that order denies the motion to dismiss and grants the motion to transfer but there's nothing special about your review of that order which is limited to any what's the decided although it was a transfer or case it should have recognized these other related sections yes yes and this court held in king instrument versus otari court you don't draw any comfort at all from of each court the transformer and the transfer record will always be at stake in a transfer case this court always addresses the jurisdiction of the transfer your transfer or court in these cases in this case is no different from the one i've been scalping how could a wad have made court said that the case did belong in a court of federal claims yet right as opposed to one in which we said it doesn't belong in the court of federal claims and therefore doesn't isn't a case within our appellate jurisdiction ultimately except for the transcript it seems to me that's a fundamental difference isn't it because once we have a case where we say this case is a case before the court of federal claims we there's a lot we can say about what ought to happen in the court of federal claims we're going to see it later we can tell the court of federal claims what it ought to do it seems to me a rather different proposition from telling a district court over whom we have no reviewing authority except with respect to the issue of transfer what it ought to do thereby potentially putting ourselves into conflict with let's say in this case the third circuit i mean what for example if we have a different set of a lot has to rightness from the third circuit what happens we issue an order directing the district court to do something with respect to the  let's say declare it to be and right it goes to the district court and a new appeal goes to the third circuit and which case they come out the the other way that seems like to say the least it's a bit inefficient and  say for the purpose of the siding with the transfer should or should not have been granted it says you have jurisdiction over the orders and that's the scheme of the statute create is the fact that you are doing something contradictory or secondly that's it that's fundamentally what you just the justice of the peace court of pickets well i mean in the district court i mean i understand that the issues were divided in that in the court's opinion between the motion to dismiss and the motion to transfer but in fact once this court determines that there is talk rector's diction you have in fact in a case like that determined for all intensive purposes that there was transfer that this reality with decision like that's not always the case in everyone but that that's what happened because that's just and that's just a necessary component of the transfer decision which we are required to make i don't see how that requires us to go wrong for us in this circumstance to say the last of the same question i asked mr cagney i asked him why the decision to transfer the cases reversed the cases remanded to the  and jersey to determine its jurisdiction and this is that most appropriate where the question of jurisdiction turns on how one finds certain jurisdictional facts we shouldn't be in the business of doing that what's wrong with that i mean that seems like the sensible thing to do here i understand and it's it's you know you can if there were no fact issues but but the question of whether the district court had jurisdiction turns on certain facts right but not disputes the fact this is not a case in which we are saying something that states have said in their complaint it's not true and therefore senators over this a question as to whether there's been finally agency action but that needs to be alleged in the complaint and an a p case in what is alleged in the complaint at age twenty one of but on the jurisdictional issue you really have to make sure you know what the facts are i mean this is whether there's jurisdiction or turns on facts and we're not i don't think we could determine these facts it just best to send it back to the to the district the order transferring the case to the curb proclaim which in hair was legal was wrong the case is and then that order is reversed and the case is remanded piri yes we certainly can say that right now can we had a too was not a result which would be greatly i'm happy to be candidates but the issue we're raising though is in fact that there is no jurisdictional basis in our view for this court not to reach the jurisdictional issue that arises from the originally go was a waste of paper well it certainly wasn't because that that was a sort of the fulcrum of that decision with court went on to address the transfer issues in great detail and just didn't address the motion to dismiss that i'm not put in the was specially hansen's and which you're dealing with a motion to dismiss on pleadings which has to take everything that's fairly alleged in the pleading well we don't we don't want as i said to just show if you were to conclude that there are disputes alleged here is asserted to be says in the complaint that this hearing fulfills any requirement that may exist or finally the action that's what the states were attempting to do is not finally see action and does not satisfy the one of the basic conditions for a what more very versus madison talk about and if i may say to you two additional cases that are not in our brief but do get to this issue on precisely i think and that is the issue of how for the court can go once it makes  determination that it's said that it's job is done which is where we submit to work today one is steel company versus citizens actually judge that is cited in our brief but it's not discussed it's just cited it's a five twenty three us eighty three and that's where the justice scalia talks about subject matter jurisdiction being both comprised of constitutional power and statutory he also quotes from a case that predates our parents day order to transfer technically if you read the statute twelve ninety two your jurisdiction is to look at the transfer order he's calling the order a piece of paper he leads me to believe i can find out what i read in case he lead me to would i would look at the statute judge i would look at twelve ninety two and i'd look at the order twenty two says only one kind type piece of a neutral like you tori order is under your power and that's the transfer order the other part of the paper order he's talking about technically is the order of the judge denying his motion to dismiss now if if you want to talk procedure then under rule twenty eight of the fair rules of procedure your  practice rules or your rules of appellate procedure rule twenty eight and under the i think it's the belly door case if you wanted to make that argument he should have filed across appeal but judge that with all due respect i think that  specific statutory provision on that and there's a case that cited on the fact that right in this in that context should be evaluated because it's an element of what the court must consider in whether or not to grant  relief but that statute which was twelve ninety two i think in a or b one b get gave the court different power then the court has today as we bring the transfer order before you i think that's the united states association case that was cited in in the government's brief and that said the united states association case said page thirteen forty eight and it's cited in the government's brief at eight eleven  twelve i think judge bryson and judge clevenger if i'm pronouncing your name correctly forgive me if i'm not judge but i think you broke both raised the question that i couldn't even get out of my mouth first time around and that is well let's look at what would happen here if you accepted the government's position and you did with the government want you to do which is not what the statute authorizes you to do you would be sending and quarterback to a district court that says to the district court made a constitutional and jurisdictional ruling obviously without a record at that point assuming the district court on your cured ruling which i'm sure would then we would be forced to go to another circuit court on appeal we would be filing an appeal with the third circuit court of appeals contesting that ruling and we would have the situation of essentially potentially dueling circuit reviews were dueling circuit decisions or at least dueling circuit reviews of the same issue and be this the ultimate split in the circuits wouldn't it be nice or would you different decisions in the exact same case i think it would and i think the supreme court in christianson that's one of the things they said that we have to work void that there is something called the war of the case doctrine but sometimes it has to come to an end and that's when the supreme court said to this court you really do need to stop when you finish your jurisdiction and let the case move on and follow its course thank you mr kay thank you very much the case