jurisdiction when you don't have a federal claim for relief dennis here the only way that the federal issue arises is as a potential defen it's only good for an affirmative defense so how does that get us to take federal question jurisdiction which is what you are lying that's that's dealing with a different problem that's dealing with whether there's a case or controversy with whether the plaintiff passed standing to complain about something here the only federal law that you have invoked as i understand it is the health care quality improvement act right yes and that the law does not create a private right of action that's it which means that even if we thought you were right about this federal defense we would not be able to give you any meaningful relief it would be a moot point because you don't have people that were in the judgement the declaratory judgment ruling was an effective appeal and one of the issues because that was everything else is conditional upon the declaratory judgment rulin you have anything else you want to tell us well you know jurisdictional issues seem to be in front of the court's consideration i'm happy to go on in and argue certain points of the improvement act which i'll refer to as hc with the acronym are met when a physician is required to prove his innocence by clear and convincing evidence prior to ever receiving notice and an opportunity to be heard concerning the charges against him as a court where he quote provides medical facilities with immunity from civil damages when briefly here in my remaining time the district court erred and determining that hamilton medical center took reasonable efforts to obtain the facts of the matter under investigation when health medical center court on the issue of jurisdiction before this court this morning i think that we really are on the horns of a dilemma we have on the one hand and subject matter jurisdiction that is likely lacking in the lower court and on the other hand we have that there is probably no jurisdiction in this court in other words no appellate judges and they really are they both go to jurisdiction and this court i mean if there's no federal question then we don't have the statutory jurisdiction either your honor i agree with that i agree with that to a point and again as i said i think we're on the horns of a dilemma because generally speaking we don't have a situation centrally turns on the issues raised in several cases that i'd like to address the court st of all steel company versus citizens for a better environment as a u s supreme court case  here is to vacate the judgment of the district court and remand with instructions to dismiss otherwise if we just dismissed the appeal then and we all have a final order i get that understand that but but if there's no federal question we don't have jurisdiction your honor i would agree with that if we didn't have the the intervening action of dr patel and not appealing his breach of contract damages claim rendered this court incapable in our opinion of reaching the issue of the subject matter jurisdiction of the lower court where the court must  consider whether or not it has a basis for jurisdiction because of mootness this court your honor does not have jurisdiction of the appeal and the proper remedy where there is mootness would be if they were dismissed the appeal section ninety one creates the blam a that i mentioned when i began my argument that being this court lacks jurisdiction the flows from ninety one and the only option this court would have based  on what i've read in the steel case and what i've just cited in the recent case which is an unpublished opinion at that point would have to dismiss the appeal that make the lower court order that is not an optimal result as as your honor has pointed out because the issues before the court is presented in the in the last fifteen or prepared to address the subject matter jurisdiction issue in more detail and also prepared to address the issue of mootness in more detail it sounds like a court  well there is no question that the intervening cause of hell resulted in the result that we have and the argument that we're now having with court that being the reason he calls this court a lack and lose jurisdiction due to move on to article three section two in that regard it's only fair for the court to dismiss the appeal and leave the judgment  never filed and so your honor in this regard we believe that the proper remedy in this case on the proper disposition of the appeal and answering question three that was presented by the court on july th two thousand and twenty would be misunderstanding the point about here here's the point your federal law issue that you've raised as a defense to damages that controversy because the district court also ruled that your state law claims fail and you didn't appeal that rule so even if we agreed with you about the federal defense it wouldn't matter it would be moot because you didn't appeal the really against your stay off plan that's what the place and i would like to know the argument and this is what was dressed in our questions to council is that failing to appeal that aspect of the district court made and with all that we do continue to advocate and argue that the correct action if this court determines that there is no subject matter if you're sixteen and this court energy at the outset of the case would be to remand with directions to always appreciate that and we'll be recess until tomorrow morning