united states and as i understand it mr given or you represent miss and you're going to have fifty nine minutes for your initial argument and three for your  we sort of caught the tail end of this dispute between the f d a and the stem cell clinic our clients are the the individuals who had their stem cells bank at a tissue products and was the focus of the prior so our clients had entered into contractual arrangements at tissue bank to keep their stem cells maintained there they had no prior notice of this lawsuit they were not named parties to this lawsuit they did not know anything about this lots of the record shows that they st found out about it after the summary judgment was entered in june of two thousand and nineteen when they were notified by the tissue bank that there was this litigation that was ongoing they weren't even notified at that point that their stem cells were at risk in the sense that they could possibly be subject to a destruction order and then after the injunction order was entered they st got noticed that their stem cells which they they own contractually and which they were relying upon for purposes of their treatment because conventional treatments had not been adequate for them were now subject to destruction so and within thirty days we had a very short period so i represent approximately seventy of these individuals and we file in motion to intervene in the trial court and the motion was d had basically three counts and the st count was that because this is our property and the court is ordering our property be destroyed without us having the opportunity to be heard our due process rights were denied that was the st our nd argument misapprehension about what it could or could not do while the case was on appeal but that's a different question from whether we have the power to entertain this now usually we look at this anom and the short answer is i don't believe it's just the stay the fact because the district court left in fact the prohibition on the use of stem cells it's now been eighteen months and my clients who depended on stem cells were for their for their well being had been denied the access to the stem cells and you know it's a trite expression say justice delayed is justice denied but in a in a case like this where you are looking to not conventional treatments to possibly save your life you know every moment counts and so because of that your honor you're right they stayed in the district court stayed the destruction think that this record mr apprehended that he was able to rule on the motions there was nothing that prevented consideration of the intervention motion we surely could tell with this or that it mis apprehended it was unable to rule the motions in which case your claims are this mess on the grounds that we don't how the court would do that but i don't believe that's consistent with what the rule is in the th circuit s intervention under the anomalous rule which simply creates provisional jurisdiction as a matter of law and says that it's intervention was proper at the time intervention factors been consider that the court can order intervention say it has jurisdiction and then if it pines interestingly enough there wasn't the basis for jerks decision at that point there was further intervention and there was no basis for jurisdiction that's the law here in the th circuit and i believe that that's the the right ruling i want to talk i want to talk about the other case the city of milwaukee a motion to enter b b it without prejudice but she denied it and then she gave an explanation as to why i say she didn't feel she was able to rule on it because of the possibility that this appeal would be rendered  and the fact that she had on the motion for clarification you know stop the destruction of the stealth until thirty days after the mandate of court in the event that there was an appeal but there is no question she rules and there we made that we made those points in our in our brief that you'll find that our prayers were we made that very point because that's that's really the critical thing i've been given notice of one of my clients that's passed away in the interim i don't know as we pointed out in our grief several of those clients have suffered from very chronic pain debilitating illnesses and the need for those cells  is is absolute as mr given or also stated nothing about the cells that were bank was ever raised in the in the district court in the complaint and the clients found out about this issue we didn't take a position on the merits of intervention in district court or here are our sole position is simply that this is not a final appealable order and just to be very clear our position on that is an incredibly narrow one  although in many cases the denial of the motion to intervene is appealable here if you just focus on the nature of the attempted intervention and the nature of the district court's decision the district court did not rule on whether intervention was ultimately therefore on its own terms it doesn't fit into the court's and almost rule and as the district court made clear its decision or its decision not to decide was focused on the particular relief being requested by the putative interveners if you look at the motion to intervene in the complaint that mr given or was just talking about if you find that document to twenty and you look at the other motioning intervene and intervention complaint you can find that it documents to thirty six and to thirty seven the jest of what i understand them to have been saying is not that they were challenging the injunction or they are in challenging the summary judgment decision rather it was just that they were taking issue with the scope of the injunction and in particular they were saying that they don't want what they view as that there are cells to be destroyed and as i think the district court made clear given the nature of that effort to intervene that's something that the district court can and has stated that she will rule on later assuming that the district court summary judgment decision is ultimately or firms and i think when judge jordan asked mr given or will what is it that you want to be able to do in front of the district court i think virtually everything that mr given or described are arguments just because the it just seems very odd to me that just because the district court put the word without prejudice in its order it just means that the order is an a jurisdiction they did not just want to prevent the destruction they wanted to argue that they were denied due according to what was given or just explained they wanted to argue that they were denied due process because this was their property and it was being ordered destroyed or potentially ordered destroyed they wanted to argue that they were they needed to be paid just compensation for the destruction of their property and they wanted to argue they were outside the scope of the injunction and decision on their claims for a significant period of time shouldn't that affect the analysis on just a short billet judge burton just to be clear we're not saying that the just reports use of the terms without prejudice  a kind of functional analysis to ask i guess to kind of put this a marker doctrinal terms whether this really is a final judgment whether the collateral we're doctrine really would up and we understand the anomalous rule essentially just to be an application of that doctrine and judge budget structure of the property and i think the sort of separate we wanted to we wanted to be using it all along argument is something that it was in there in all candor i didn't see it as a point of emphasis or really a point at all i think it's something that really  merged for the st time in the revive briefs but judge burton i mean i should also just step back and say that the nature of the final judgment rule is there are situations where you can end up with someone who says look i don't want to wait for  that various states have adopted like to write legislation where they allow unapproved quote unquote drugs to be used in certain limited circumstances we raise the fact that other jurisdictions outside of the united states my clients intended to use the steps they were using and they intended to continue to do so and with all due respect that's a compassed within our due process claims it was not  also suspension to allow us the opportunity to present the arguments just as mr given their stead so we we are asking who are dead and is this a big time it was no possibility of us intervening and making these know i rest on my briefs and honest to goodness gracious all right thank you all very much we appreciate your arguments these these two are very difficult i think cases in different sorts of ways that's at least my personal perspective so we appreciate the help that you that you've given us we are in recess until tomorrow morning at nine