that barred to agree parties alpine and a nonparty scottsdale capital advisors from pursuing a stachel statutorily authorized claim under the administrative procedure act through an action in utah in the process the court fail to conduct the proper analysis with respect to application of the st filed rule and simply ignored substantial perve persuasive pursue the right that any agree party has to really litigate as an offense that had been raised here record it was an issue that had been raised and rejected rejected by the district court i obviously i have argued that the court's dismissal of the argument didn't actually address the issue the court never considered the actual requirements of the a p a the court never even looked at the fact th record to have the matter though with two reasons number one because alpine and scottsdale a nonparty are statutorily entitled to have that issue properly reviewed because there is no bar by virtue of what happened in in front of well could it not have been reviewed by judge code or by the court of appeals that's the nd reason your honor there could never arguably have been a proper review of this issue by this court and here's the reason why because st file rule i true based on all the nd circuit decision this just take the district court proceedings that issue would not come up here appeal here's what alpine confronted in that case and this is not the st time i've come to this court seeking relief on this issue here's the situation that was confronted with  t c enforcement action alpine is not allowed to assert a counter claim we all know that so there can't be an affirmative claim by virtue of that there is no record but gov i mean the f c c would have to call the to the to the to the different course consider what actually occurred here this is the reason why it is a competing claim that should bar a litigation and not just an overlapping issue or argument here's why because since we were not allowed to assert a claim since we were not allowed to obtain any discovery on the issue since unlike a real a p a claim we never received an administrative record in fact the f c c sought and of taint from the court a ruling that we were not intitled to discovery on the issue so the issue the record never developed before the district court that enabled the district court truly to give the issue the back of her hand without any consideration isn't that a perfectly good issue raise on appeal from the different courts ruling here's the reason putting aside the issue of whether we are simply statutorily entitled to pursue the a p a case which you obviously i believe we are there is every likelihood here that there will not be an appeal of this case under these circumstances and that if the appeal does go forward this court would likely conclude or consider that there really then we end up trying to go back and do exactly what was denied in the lower court again discovery denied not unheard of here but the reason why the f c c why we're not allowed to counterclaim in action is precisely because of this as he's seen foresman actions don't permit counterclaims because in enforcement actions there is not supposed to be this kind of a p a issue that then bogs down that litigation that's why there are two cases united health and cedar sinai that explain that where you have enforcement relating to an alleged violation of a particular statute but also an a p a claim those are separate and distinct and in both of those cases the courts concluded that there was no bar to an a p a and the courts in those cases explained these are different issues different relief sought not duplicative claims and both should be allowed to proceed and develop now why do i say is seeking the penalty that is so massive they've now filed for twenty two million dollars penalty under those circumstances where you're dealing with a regulated broker dealer or clearing for the ability to actually survive issuance of that judgment is by definition in doubt given the route even though you could proceed after that cases over to do what you were trying to do out utah you wouldn't have the ability to do that that's right it's very arduous of what you took an appeal from that decision that's right and we have a we have put this issue before the court not just in this proceeding but in prior applications saying it is a given that the f c c is proceeding with a request for a penalty that far exceeds even the annual revenues of the firm when you're dealing with  such a penalty i think it would be fair to say that she would be disinclined to stay in for cement and permit an appeal what we've been debating is whether we can then come to this court and ask enforcement such that the firm cannot be closed down for net cap requirements we believe that's possible but there certainly is no clear authority a takeover of the firm with someone being put in charge of the firm that will then waive any rights to it from what you say there's absolutely no doubt that the utah action resigned to ins if not evade avoid avoid what you regarded as the never a good results in the the truth of new york i would put it very differently i would say the utah action was filed because we wanted a court the notice of appeal that that we filed was clearly filed on behalf of both the f c c has made an argument that somehow scottsdale is not appealing and put another way the junction was issued against scottsdale right which under nd circuit authority certainly appears to be governed by consideration of whether there are actually competing claims the argument that the f c c is making here really is there is an issue that came up in front of the district court and that's enough because that same issue would be involved in utah that's not a basis for application of the st filed rule that is instead mckenzie for this curious exchange commission as the district court said this case presents unique circumstances alpine scottsdale expressly asked the district of utah to stop this and force me to action because they were unhappy with the district court summary judgment ruling has raised this issue in this action and the district court rejected that argument but they're saying that the district court didn't give it the full treatment that it does or why i disagree with that your honor and if you look at the district court's rulings in this case they tend to rule at issue is a reasonable interpretation of section seventeen and number three outlines arguments about the lack of notice and comment are not persuasive she clearly addressed each one of our minds arguments i understand alpine feels that the district court did not address the authorities that they feel best advance their claim but as the as your honors have pointed out that alpine can raise that issue on appeal that is the appropriate venue to do that not in the district of utah so you your position i take it is that been very clear it's alpine is correct on its a p a claims that it would undermine this unfortunate action which is exactly why it was inappropriate defense to raise in this action and alpine did it and it lost this court will have a chance to review that after final judgement as to my arguments about well there's not going to be an appeal we can appeal those issues were directly raised on the mandamus action and this court determined that that was not a sufficient basis to review before fin three that says if you really disagree with what the district court did what you can do is file a collateral lawsuit in another district court get yourself in joint appeal and get merits review i do not think this court wants to set a precedent saying that that is appropriate i do want to make one point about scottsdale and that is as judge brown has noted they're not in this case right now they didn't appeal if you look at the caption of this appeal it is as you see st as alpine securities corp because challenging all parts of the order but it was very clearly only on behalf of alpine and the best evidence you have of that is you can look at the caption or the signature block in the notice of appeal which says on behalf of alpine securities corp not scottsdale in fact  my colleagues brief on reply talks about how it would have been impossible for scottsdale to appeal which your honor i frankly find a little bit specious considering it's very clear that a part of it is bound by an order can appeal the supreme court said that in d court said that an unsecured creditors will come now judge coats injunction was directed to which party or non party both alpine scott so i just just want to emphasize that you know all the commission asked for all the district court's order does is preserve this court's ability to review the dish records ability to reach judgment in this case and this course ability to review that judgment after final judgment and we would ask that the court affirm its order now we're both scratch them and find parties before judge coat no your honor alpine as a party and scottsdale was referenced in the commission's complaint it by its own  courts can only issue injunctions against parties in limited circumstances but this case presents those limited circumstances why because scott still was in utah specifically asking that you talk court to enjoin these proceedings scottsdale can't go into another district of the bit of time with respect to the issue of the extent to which the district court addressed the a p a issue again let me be clear yes the district court issues link the opinions in this case there was literally a couple of lines in which the court very cancun was orally rejected the idea that rule seventeen a was procedurally unsound there was absolutely no i why are the decisions of this court that essentially addressed efforts to get them reexamined the law the case here that binds us certainly and w will say certainly not speak for my clients which i would suggest might well bind us the the issue that our plan confronts here really has to do with the fact that st of all that was an issue that was raised only defensively in the case and this court will not find any decision in which a litigant has been barred from pursuing an actual cause of action by virtue of the fact that an argument was raised in another case again this couple was raised in another case a man by virtue of efforts to get it up to the court of appeals was reviewed by the court of appeals and the the party was precluded from bringing this this issue i have argued cannot properly be reviewed by this court of appeals it is my concern that word this appeal to were we able to file the appeal and we do not believe it likely that alpine can survive the issuance of this judgement so if we were able to file the appeal we think this court would take a look at that issue and find the record to be undeveloped precisely because it was not a cause of action or claim which i continue to maintain is really the basis for an injunction under the st filed rule which was the only cited by the district court so we will not have that ability but more importantly this was not done and directed at the new delhi to appeal from a have to anticipate that and if you can imagine the circumstance in which we find ourselves where we have presented to important legitimate issues that really are threshold issues for this case and we are facing extinction such that we will not be able to get review now putting that aside it wasn't just frustration that led to the filing of the utah case that is the statutor authorized path for an aggrieved party to actually get a review on an a p a issue why for example you this is not a duplicative claim in the s e c case because we could never get the