your honor in this particular matter we are requesting that six circuit vacate the bankruptcy courts findings they were in this adversarial proceeding between the debtor and c e o we and remand this matter back to the o we agree to or the court bankruptcy court will even suggested will be tried at this hearing and since it became the final fact a large advisory opinion which is prohibited by the us constitution and my final reason for reversal your hon which required therefore your honor i believe that they need to be reversed in this particular case your honor personally district court says it is but that doesn't matter much the main thing is your honor this is a final order educating three constitutional issues that involve my clients first of all whether or not my clients have waive their right to a trial by jury or still have a right to travel but more importantly your honor whether the factual findings entered by the bankruptcy court have any impact on my client's whatsoever so i think that there for this court does have jurisdiction nothing else final judgment by the district court the cases that i would point to would basically be the cases it would come out of walton and stern versus marshall those reported final decisions that could be heard by the district judge moore's question you know what of the traditional categories that allows an interlocutory appeal cohen or whatever are you are you claiming you're here on the one that i would claim we're here on your honor is in fact in a locker to repeal that relates to determination of rights collateral inseparable from our adversary proceeding but there were made specifically for another procedure and that is the administrative action in front of the department of education that when the debtor litigation that are an appeal of a lesson and a lock atory matter their final as to a certain aspect of the case but they're not dispositive case generally when we use the term final order we mean the case is over but in bankruptcy court you're there's a far more lenient standard to be honest in this particular case given the fact that we started out with a hearing on an advisory opinion requested by the debtor and managed to get a hearing on that which reported to be a final order we believe that's final enough on our constitutional rights to have this for to hear it and in fact decide that no we should not have been entered and we should not have to be able to go to the expense and the burdensome for absolute fun who's the bankruptcy court remember you could say that the only final order by its core issues is either a chapter seven discharge which concludes everything in the case or confirmation of chapter eleven or chapter twelve which includes everything in the case and seems to me that you consented to have the bankruptcy judge make a ruling on exactly when he made a ruling that so let's get back to that well that's basically where we get our jury try are we actually didn't consent really to anything in it had to go down for under a substantially to an on line delivery method and that's substantially through an online delivery method but the bankruptcy court never even answered that it basically said we believe that there was a factual error because the been approved to offer courses through distance education but did not say substantially through an online delivery method is i can't think of an issue that's more central to what this case is about and that one well the central of this case remanded back to the bankruptcy court to hear it but that doesn't give the bankruptcy court the right we would because it's a central action to make a final binding decision on an ordinary state law lying that was what you believe the six are considered waltman certainly i the footnote to that when i go to the review that the porters order another it's of order but also your honor it has the problem of it doesn't it in our jury trial we should remember we agreed to a single factual question to be use a motion for clarification we said this is our understanding of what are we would be beyond the single issue in our tribe brief we said this is our understanding with the here and we will be on a single issue in our motion limine we said this is our understanding bankruptcy court never said we were wrong in our understanding and for there to be any type of waiver for a jury trial s p and knowing waiver and we said this is our understanding this is what we want to agree to and do well whether your call an advice through your file or whatever issue was involved the proof of playing between the debtor and the department of education litigation not anything through there where you get deference as to your determination as to eligibility or not alg good afternoon my name is peter kaufman may please the court i represent robert keats bankruptcy trustee for decker college there as of course questions have presaged there are really two procedural facts that resolve the issues that have been raised by understood and did not perceive that the construction programs of decker were going to be offered through distance education distance education and of course you wouldn't know it from what you've heard of distance education is a term of art it's defined by  a in what they call their bible their handbook and it's defined as fifty percent or more on line or through some other distance methodology well how far do you carry that are you saying the only thing left now is whether i war and here thirty three million dollars no your honor i mean i but i think it judge bolton did something really smart here to avoid ping pong appeals and litigation he sent out an order a month before trial and he said if you have any statutory or constitutional objections to this court holding a bench trial on this issue bring them forward and they didn't bring forward a seventh amendment claim instead they said that they consented to the hearing taking place on the topic which they they defined themselves in bankruptcy docket ninety eight as the veracity of their statements to the department  final judgments for a normal appeal the case i would give you a case in rate gladstein is a third circuit case i just happen to look in collier's before i came over and that was the case they cited so i'm sorry i don't have a six circuit case  and that's one ninety two f thirty eight the primary thing that the third circuit looked at in whether a final order and bankruptcy is final for purposes of appeal is the impact of appellate consideration on the assets of the estate obviously here the impact of having this final order become final so that i can take it back to the department of education and say look you said that you couldn't look behind c o we statements to find out if there were a line that you weren't competent to do that it took a court and i have to agree courts are really the people who are good at finding out who's telling the truth and who isn't and they said we can't look behind that in order to assess your claim against us for twenty million dollars and of course the bankruptcy courts not going to have a look at their proof of claim for thirty two million dollars either until they know whether c e o he was telling the truth or not because up as maybe obvious or not c e o way is one of the three gatekeepers to federal funds you can't get federal funds unless your credit you have two other things too but you have to be a credit so the third circuit says the primary the first and primary is the impact of appellate consideration the assets of the state that's very strong here other things are  doing all judge fulton did here is decide this particular fact and i see him down we understand what you're saying you have are your going to use that with the need to say withdraw your claim to have to go back into the bankruptcy court or the district court depending and we're going to have to deal with their seventh amendment claims which of course they only waived for this fact finding hearing and we're going to have to deal with all that i would say that this fact this particular fact has now been decided for this adversary pursuit that's this wasn't done in a vacuum it wasn't done outside the adversarial proceeding it was done in this adversary proceeding as a result of their motion to dismiss and to stay and that's why you know so there's no reason to force the court system to bring the same witnesses in many of whom are third party witnesses have them testify again and cetera they consented to have this done and it's been done and so this one fact out of all the many facts will need to be proved in this case has been proven and decided finally so that's that's why i think there is appeal here is there is also into it's also in order and the district and the district court treated it as an interlocutory order obviously there's a controlling question of law here in the state a stern case that they bring up in the seventh amendment cases they bring up and so it's appropriate to be heard under twenty  there would but the district court while he didn't call it certification talked about the things that would go in a certification it seems to me as a practical matter there's a controlling question of law he called it an interlocutory order order under one right exactly and the u s supreme court in connecticut national bank against her may said that the fact that there isn't a similar provision for the courts of appeals in one fifty eight is not a negative by implication that twelve ninety two still applies so it seems to me if the intent of the district court is very clear that he thought this was a remark tory order and he was getting back to sort of the main theme of his which is sort of hard to follow so in effect sense you having any claim against me would be dependent on somebody having a successful claim against you one can understand how they might have said well we don't really care if you win year if the d if what you do in this proceeding results in the we withdrawing their claim for past two asian and so forth but we if that doesn't dispose of any action against us we have jack that finding being substantive as to any liability we might have to you and you'll look vain in their written waiver document for that language of the court just because they do not say this they do not try to say your honor just what you can use it for some purposes but not for others they point out the fact that it is going to be useful in front of the apartment which is of course true but when they are asked to raise a constitutional objection they did not raise they did not raise article the seventh amendment they don't say that this can't be used in these different ways they simply don't say it they let the court go on but i take it your position is also that even if the oh you tomorrow said we're outta here we're going to we're not going to fuss with becker college or the bankruptcy or anything anymore you would still make the argument that  he put you in this mass and knew in effect went into bankruptcy as a result of all that happened after that clearly yes and that's what the adversary proceeding is about maybe they killed the school they got to they knew what we were doing beyond that broader than that in the adversary proceeding that's right we have a monetary claim this was a you know multimillion dollar if not hundreds of million dollar business that was driven out of out of out of business by the folks at seo we claim to be shocked that there was distance education going on it decker you know i've been told in writing it may not be part of the record but i take that sense decker is a private college they're not getting any money from the state and they can impose property taxes so they live or die on tuition that's how they run the school isn't that correct or on that's right yeah it's not a charity it was a business that covers much of the material i think one thing that they didn't raise with the court raised it is do novo review and i think this is really in some ways kind of much ado about nothing  again just as just fulton was very wise to have required the and injections to be raised in advance judge haber and district court was very wise to have done an alternative ruling which courts do all the time this court has done it several times i'm not going to bother to read the examples and i when i looked it up and it's a great thing for a court to do so that a reviewing court can look at the whole picture and can and have if there is more than one grounds to uphold it they have more than one grounds to uphold it and that's exactly what judge has been dead here he ruled in the alternative that that this was already under rule nine hundred thirty three d he will in the novo standard of ninety thirty three d that the record we support in the district courts factual findings and that resolves the questions here under the last resort rule and i love to  justice brandeis never got to do it before but justice brandeis the ashe one wonder case said that what you should avoid a constitutional question if there is quote some other ground on which the case can be disposed let's see where to start in the current posture of this case where the court will be referring to pending claims to u s department of education ministry of process after conducting a narrow fact finding hearing on the veracity of c always statements of the department of education concerning series approval  raise a seventh amendment issue where they seem to have trouble and judge guy referred to it is the fact that the district court looked at circumstantial evidence to find out whether they were telling the truth that's really what their problem is they they think that when they consent to a judge hearing something they get to after the fact or sub rosa consent to how the court does it what evidence does the court hear what inferences does the court make what standards does the court apply that's not what you do if you give up your seventh amendment right you give it up you don't get to say i give it up as long as the court only hears my witnesses or as long as the court thinks my witnesses are better or whatever i give out or they  laurel brook sanitarium case made the very obvious point in a rule fifty two judges are supposed to after bench trials make subsidiary findings what this court is called subsidiary findings on which an ultimate conclusion can rationally be predicated and that's what those sort that circumstantial evidence that was used there is judge fulton and then judge haber looking at subsidiary facts necessary in order to predicate a finding that the statements were true where they were false if someone says that they had a particular state of mind at a point in time and then afterwards they don't act like that you know if i say it was a sunny day that well it's a bad example but you know if they say that something that they had a certain state of mind and later on they're confronted with things that are contrary very contrary to that and they don't react they just act as if that's what they expected that can lead factfinder to believe that they never really that they always understood that and that's the case here they always knew there was distance education going on a my time is up thank you me take up to the issues that were brought up in the decker college presentation first of all going back to document ninety eight you know he went through quickly but the key issue here is where the court the bankruptcy court the pending claims to s department of education ministry process this was not where we said we'll agree to this for all things are green it was very specific they wanted to have where they agreed with the department of education to hold up the administrative process to get what it turns out to be in the vice re opinion we said we would consent to that advisory opinion at no point did we ever consent in writing or otherwise they would be final findings of fact to do it in fact we demanded our jury trial right to this this was an attempt to help the not been resolved but as for words going i do not know i think it's still sitting here with the main thing the second thing your honor is in this particular case we did not have we didn't agree to that we didn't allowing this to go forward on is to help you out with the ministry of proceeding in front of the department of education this was it in something is the truth or prosy on the second the issue of what happened on the department of education to or not agree to anything it's a little hard thankfully you're ours i'm sure we'll find out to direct what courts have ordered you to do we made the best we could by saying this is what we would agree to in our consent and everything else while it's point in time has this finding that the bankruptcy court made as sustained by the district court and used against you as it's been used in other than the administrative proceeding well the only thing can tell you is the tempted to attack  that there is and i can't quote you cases or anything but there's a fairly well developed body of the law as to the role of that administrative finding these can play in terms of trials that relate to the same issue whether it can be admitted or whether it can't be admitted whether the fact that exists whether it's binding there's a lot of law on that and you're not precluded from urging mannering oh no not from the moon straight what we're seeing here your honor is there tim to basically