very familiar with all of the background i do want to say one i do want to address one preliminary issue that the plaintiffs spent a lot of time talking about in their briefs which is that that the delay in this case has really disadvantaged about how some of those activities are sovereign and in fact that b c hydro doesn't sell power into the california market those are not the activities that we intended for the court to review as part of the direct effects  using up everything it's generating for its canadian customers that's true but b c hydro is also specifically making power supply decisions in order to take advantage of the situation in the california market and there's quite a and i would venture to say that if section twenty point seven was in the authorizing statute of one or both of those entities we would not be here asking the question whether there was a waiver of sovereign immunity because twenty point seven is very clear on that question  our proposition for why foreign federal sovereign immunity has been waived in this instance is that the waiver is inherent in what congress authorized the administrators of these two agencies to do namely to contract on terms that those agencies believe were necessary to the performance of their mission and to resolve disputes rising out of those contract will arrangements also on terms that they thought were necessary now the statutes ar broad and the essence of bonneville the administrator is authorized to enter into contracts arrangements including cancellation and compromised or final settlement of any claim arising there under market the administrators of each of those agencies believed it necessary that they subscribed to the i s o and p x tariffs congress told them that they could accept the obligations that they believed were necessary and each of them believed that it was necessary to participate in those markets according to those markets terms and that's why they accepted them by accepting them if they acted improperly in those organized absence of an express authorization from congress to do through our proposition is that these agencies have the expressed authorization where what statute other than the fact that the statute compromise claims in a fashion that he believed appropriate as bonneville and its counsel the department of justice argue with in the court of claims internet aska they said that the statute authorizes binding arbitration and one must wonder if the fact that the administrator has the authority to enter into some sort of an alternative dispute resolution mechanism doesn't address the question of sovereign immunity does it we believe your honor it does i see that my time is up and i'm beginning to intrude on the single window agency to market the export of the provinces hydropower resources in the united states and in other provinces of canada and that is and that is what it does it participates in commercial markets in order to do that but that was its mission from the province and that's how it serves that mission we believe that the district court did not give adequate weight to the facts of the creation of power  x did not fully weight the public purpose that power observed and that in looking for a day to day control to determine whether power x was an organ of the province it applied the wrong test removal order until it is certified and sent to the state court at the site from that argument and you know you might you know had in addition they are it is a final order because it is dispositive of the issue of whether power acts will receive a federal court trial because once this case goes back to state court if it does then power x has no vehicle by which to then raise with the state that's always true when a court decides when a federal court decides that it has no forward we're not interfering with the proceedings in state court which is what the fourteen forty seven d is supposed to enforce nothing is going on in state court and it won't be interfered with by a review and a reversal so the judge wally will once again have an opportunity to have this case before him to decide on the merits whether there's any claim against power if i may turn to b c hydro for a moment the  district court and that its application here would show that power x meets all of this court's test for an organ of the sovereign state as far as b c hydro is concerned the issue here as presented by markets both of those in our view are sovereign functions part of the lot of part of what the court partly part of what the province did in creating he hydro and later power was give to b c hydro control sovereign control over the resources that it that it assigned to power to b c hydro to develop and so in the generation of that power and in the management of that power it is fulfilling the sovereign function for which it was on a on a policy level basis not on a transaction by transaction here's the deal what are we going to do on a policy level setting credit limits by party using objective factors to say we will not allow power x to make sales of our natural resources if we're not assured of payment that is we submit advised of what that is and that is a sovereign decision regulating the export of natural resources of the pro the capacity issue is the other the other element of it is the living power power b c hydro did have power to sell it was simply a matter of power actually once it had a deal to make coming to finding a deal finding a credit worthy customer the power was there if hydro power ass wanted to sell it you view commercial activity and sovereign activity as mutually exclusive categories not at all ok so i mean one of the theories of the foreign sovereign immunity is that may be that a sovereign can engage in commercial activity exactly in fact in the house report they specifically designate trading companies a i stand that your i think that in the the the distinction between commercial activity that would give rise to a commercial activity in b c having a direct effect in the united states that would give give jurisdiction over b c high understand  sale with it within the policy limits set by me answer the question that was greek and i think was arguing earlier and that is suppose that the evidence shows that b c hydro deliberately withheld production in other words ordered its dams not to produce or spill as much water and tell the market price got to the point that it want that it's been ordered the dams increase their production so they could take advantage of the nation imposes are very often have a commercial purpose of protecting and dry and increasing the value of the nation's resources and those are appropriate decisions for a sovereign to make and those should not be second  reflects if you can rely on are relying on the general power to ensure into contracts and settle claims that's that's never been thought to be a waiver of sovereign immunity and even though the postal service had the same howards and for a contract that all cla an arbitration where there were well let me i'm glad you're on brought up to ask because actually the case they're standing the case on its head they are what you had were a breach of contract claims predicated on b p s actions brought against the united states story the timing is quite confusing this morning so many parties may please the court my name is barry himmelstein i'll be arguing for the plaintiffs people that are out there quite a few name plaintiffs in this case i'd like to talk courts are supposed to address challenges to removal jurisdiction before reaching any other issues and that happens here and the courts of appeal are ousted of jurisdiction to review  district court finding that it is without subject matter jurisdiction as this court has said on repeated occasions that rule holds even if the district court's ruling w quote clearly wrong on quote i'm not suggesting judge whaley was wrong in this case but just as judge whaley addressed the question of his jurisdiction before getting to other issues this court must do th what do you do with it i mean it seems you know your argument is perfect until you get to the right of removal of either federal agencies or foreign  get it into district court and cite your way that the district court is no longer denying removal mining ground of absence of subject matter jurisdiction because you're somebody who is entitle to bring the whole case  specifically in security this that they can budget ran a car this federal jurisdiction does not attach until unless and until the district court finds one removing party i foreign sovereign under foreign sovereign immunity to act and two that no exception to sovereign immunity applies and lessen until both of these things are true as to at least one removing party under the foreign sovereign immunity exact federal jurisdiction never attaches and the only jurisdiction the district court has at that point is just fiction to determine whether it has jurist action this court has you're going to sue a foreign government if there's any jurisdiction at all it lies in federal district courts yes all right and so what's wrong with the federal district courts and what i have before me b c hydro  of a foreign sovereign and therefore i am ordering that entity dismiss that question is clearly not before this court because b c hydro elected not to appeal from the district court's decision not to yes again we have to go to the doctor in a derivative jurisdiction chance from this question which expressly in their brief do can reliant the only parties appealing that he termination this case because of the way the case got to the district court it is also a jurisdictional defect because under the doctrine of derivative jurisdiction which has been seen in vitality only in cases a remov by the federal government where the state court has no jurisdiction over claims against the federal government the district court requires none upon removal that is the doctrine it's not an application of the doct that's it and judge whaley properly applied that here once you determine as does really correctly did b p a and waka did not waive sovereign immunity the suit filed against them in district court the state  saying they were not entitled to that in federal court they got that determination as part of jurisdictional findings now could judge wally have reached out and dismissed the claims against b p and walk on the merits  i'd like to be able to say no but in light of the president of this court i can't he could have done that he did not do that what he did i submit was equally valid exercise or sanctions to remain in the action not it doesn't matter our hands are tied we just don't have jurisdiction to review the order and there are perhaps situations where the law is not a perfect seamless web as everyone would like it to be and perhaps appealable order if it preceded the order of reading and which it did not i mean what we have to play and where it lies the judge issued a reading and order under the waco doctrine if he had dismissed the claims against the united states and d c hydro before entering that ring and order you the supreme court says it must proceed to remain and order both in logic and in fact then it is reviewable under the waco doctrine that did not happen here the judge issued a reman order which is non  not always provide a perfect solution for everything that's why congress goes in fixes problems you may have a problem here it may be wise to have a congressional solution but i don't think it is for this court to invent want are you really arguing for a practical result that makes it possible for states to federal agencies and federal government in federal interstate court and and  should be arrogant enough to do that you know it will not reach final enforceable judgement this doesn't seem to happen very often this is the only case you know that i think i'm aware of right now where this is an issue like in the river i think it's the river feldman doctrine applications state courts are competent to decide questions of federal constitutional law i think the court should not presume that a state court judge would be so pardon the expression the issues i'm concerned with yes judge wally had dismissed the united states that wouldn't change the fact that the renewed order is not reviewable if you enter that separate order waco says that  and so this is really not a great concern to me unless the panel does what i personally just do which is send it back for another two years of litigation that would greatly concern me because we've been at this three and a half years when we should have been at it assuming that you have a right to bring these claims that all i mean we have parallel proceedings ongoing before the commission to alleviate some of the harm that you're complaining about it's not as  pairs of california and your clients are completely without ramming again your honor i don't think you're allowed to decide your jurisdiction based on considerations of public policy of respect fully submit that is the state that is what congress does when it prescribes appellate jurisdiction it makes the balancing test of whether you prefer accuracy in levels or review versus speed and as this court has repeatedly said and i'll just quote you know from teleport the congress decided  cases begun in state court when feeding lays occasioned by federal appeals over jurisdictional issues are unacceptable consequently the district court is the final arbiter of whether it has jurisdiction to hear the case judge whaley decided dismissed the federal entity as we would be sure properly on our side on appeal under section twelve ninety one and the judicial code that is the holding in your decision in a way that is the holding in your decision a decade later in nebraska benson it cannot be the law that because judge whaley believed that he could not and i believe your honor is correct he decided he could not not that he would not actually dismiss have jurisdiction where you have jurisdiction to hear r p o under section twelve ninety one and i thank the court for being understanding of how we bounce back and that it ok the court very much appreciate the quality