administration or in force when our interpretation of the law is liable for a facial taking it is appropriate for court to declare that the law takes private property without just compensation and that is the situation it is when you when you say there's a fake normally we think a facial challenge of such challenges statutes or ordinances and you would get a facial challenge if you looked at it more and such as the ordinance here and the ordinance was unconstitutional in all of its applications any application that the most inventive mind could think of but you certainly can't do that here well in that i understand per se taking lore and if that's what you mean by official take  it that's one thing you know what the standard in the takings context salerno has never been applied in a take it's context the standard in the takings context is whether the enact unit of the law has taken the plate as private property if you look at brief i've never heard the terminology facial taking well that it's it doesn't come up all the time you know it's true but it has come up in this court in several cases and the supreme court has as that again of facial takings for instance again keystone  using the terminology facial taking yes sure that's all right but let's let let's move on all right i didn't see any such claim made in the district court well we argued in the district anatomy of the law had caused it taking there's really no you didn't you didn't argue that there's one sentence in a lengthy memory emblem that can be construed as arguing but there was no developed argumentation for that effect before judge smith believe that in both the complete and in the briefing it was argued that the anatomy of the law because of taking in that is the facial taking standard again if you look at the cases at the standard that says that's fairly standard procedure that if the court goes on to address something we have a right to appeal that ruling and it addressed the facial takings claim and said warmly that there was no takings claim here that the city ordinance has destroyed my client's  business at the moment inactive the law banning paid sales my client's preexisting business and the lease and license upon which it opened that business were instantly destroyed and what we're saying is in that instance works because on that basis there really is no difference between not known as applied to challenge you can't you can't make a claim that the very american took this property without looking to the individual facts and circumstance this area all right cannot be used for anything except open space all right the facial taking is clean always looks at the facts of the pla property because the takings claim by it's nature has to look at some property again if you look at keystone if you look at this court's decision of philip morris if you look at thomas syrup the courts are always looking in deciding whether a facial claim has occurred foresman interpretations so in a typical land use case you're not asking whether the zoning restrictions would cause the taking you're asking whether the application of that restriction don't here in this case wouldn't we have to look at the lease on the li in order to reach that conclusion to me then i have to admit that sounds like more like an as applied challenge to me as well not on the law side of it but on the circumstances of your client and the understand there is some lack of clarity in taking it all about the line between a facial as applied claims i would just ask your owners to go back and look at the case and then see what the courts have done whether there including this court and philip morris whether they're lease and your license are going to lose all their beneficial value well on there for the licenses was for this shop that was destroyed by the nat when i thought it was for a pet store it's for a pet store that which we applied for a a puppy sales for we didn't get a license for to sell birds we got a license to sell puppies that's what we apply for so i know that there are actual application is not in the record but if that's an issue then that's a factual issue license says pet shop but we were granted that license after going through an application process in which we had to state what we were going to do what kind of shop are we going to open so we applied for to sell back to the fact that we have been skeptical about whether this claim was raised below but what if i have a state license to to run a pet shop all right were gardeners what was in my application if there were no limitations on that license i can sell  it's not in the record actually helpful to you if they're not in the record we don't have to go back you lose you know i would that's why you've got a burden on summary judgment to put your best foot forward and to put in into the record the facts that help conclude that there is not enough to say that the license was destroyed the lease was certainly destroyed since it was for a puppy business in that time of the anatomy of the ordinance that lease became useless and worthless and my client had to move out after after starting a business  preexisting law which allowed this business on the as applied to claim your honor a lawyer before before you get anywhere into the as applied question all right my first question is do we have jurisdiction over and we me and there's to the state court instead of dismissing it and forcing the plaintiff to start a new action in the city to take its claim your honor was not removed it was never removed no no no no but the action was removed but the takings play wasn't a part of that  actions oh there are three claims in this action are we me and two of them and keep one it doesn't work that way if if if we're going to consider the takings claim that was never removed to be remanded under a removal statute which i don't think is proper i would just say this the case also the court had jurisdiction over the case it was improperly moved so sections supporting forty seven days not been applied and this the district court didn't remain on the case if you look at the terms of the statute it can can i ask you to start where we started with with your brother was the what is being termed the facial challenge that challenge raised its record it was not raised in the district court your honor and that's the cardinal rule in the deep trouble that you mentioned a couple of cases ago that you know i listen to you very carefully you are part of a very elite minority and happy to be so up per se takings claim you haven't brought a facial claim if you had you haven't reached them you wouldn't reach the merits on that anyway and he goes on to distinguish why the lease  was restrictive based on the on the plaintiff's negotiation with the landlord and so that doesn't count and he chief judge smith mentions that the license itself is for a pet shop and doesn't ban sales of i think he used doggie supplies or puppy supplies and things like that but the fact of the matter is here we have it's not just the defendant appellee saying you've waived that argument judge smith is telling this court they'd waive that argument so and i might say also the palomar never identified the state license as a property interest that's another wa i think the facial part of this case and at that point i'm hoping that this court will focus on the as applied case even  though i think fourteen forty seven now applies thanks to amicus thank you if you want to stay on but that's not optional on our part because we don't have jurisdiction we don't have jurisdiction yes and so says even if plead lower court is eroni is right if it bases it on subject matter jurisdiction were up but but if i could plead with this court i read the san remote case and i read the last paragraph of the concurring opinion by judge rehnquist where he states that he believes the court should reconsider those two elements of and in williamson county and but he says we don't have the proper case for and perhaps there may be another case that comes along i think this case begs for that i i cannot believe that the as apply takings requirements under the williamson county the two requirements the finality and most important seeking compensation in the state court happy man if i had the authority to overrule supreme court cases right on but i could but i don't what he is saying is not that it should be that that the williamson county standard should not be applied mechanically that that the that the lower federal courts have some discretion to excuse compliance with williamson county and that's true that there have been a couple of cases that have excused that ensure compliance is very different than the circumstances all right so that's the argument of what what he's saying is the prudential decision rather than a jurisdictional decision and i find it so fascinating because this court is uniquely qualified based on that standard and chief judge howard then wrote a concurring opinion which said if you'll excuse my paraphrasing hold on what we're not going to do that we're going to stick with williamson and then later in downing salt versus court it was in sue them it started in one nine hundred ninety seven where judge souter said that that these were prudential requirements you knew that your honor when you decide when you wrote your concurring opinion i wouldn't place  that they didn't they didn't object to this but in any event the argument is not jurisdictional so we have three united states supreme court cases that diplo one sentence to changing williamson county and yet this circuit in its decisions the three i mentioned in one of the pascal has uniformly said no work but we've got to stick with williamson county and so chief judge howard you ask a good question what should we do with it i think this court should devote some time in the decision if you can even though even though that it really you really don't have jurisdiction over the appeal to reaffirming williamson county there are good reasons that williamson county has those two requirements and i would ask this court to look at your prior decisions and cannot i call it with respect passing references to what that standard is and in the united states supreme court not to allow those passing references to overturn what i think is a good decision and williamson probably if i may i'd like to go over just the reason for that and then ask the court court if you have any questions there one reason and in addressing the reason for that that you address their argument that even the wonderful advocacy you've done to make sure that i i i i you know you you you've hit the issue i do want you to decide but on the other hand i'm here to advocate for my client and i don't i think they have on the as applied issue here that's not appealable because it's a remake and there are cases that say that as i've mentioned on the if there's a facial taking that has to do novo hearing rightness is not required there but the problem your honor is that they've waived it by not by not raising it it's very unfair to this circuit and that was would be very unfair to the chief judge to go through the analysis when the lower court never had the opportunity to address that so for those reasons as an advocate for my client i have to argue that that the case should be think that because i think i do believe that these takings cases should first be decided in the lower in the state court that they're more quick to do that and  they should be there first as williamson said and then we should go on from there i think a lesser any questions i've i've argued to to where i  remembered what was left of the case so i'm glad we we we understand what happened the same way however in forty forty seventy that barrier to appellate jurisdiction applies to a remand order after a case is sent back to lack of subject matter in this case the case was not such sent back and even if you could treat one claim the takings claim here as a case it wouldn't fall under and forty seventy because i have a question about that easy i thought i heard you brother counsel suggest that the case to say that if the district court thought it was say a remained for lack of jurisdiction frist lack of subject matter jurisdiction that we were bound by that assessment and i don't understand that to be the law do you can you and while i know that i don't agree with that i refer to carlsbad in the in the supreme court which says we are not bound by the district court's assessment of its own order as being based on subject matter jurisdiction and and i would agree with that i would just say that it goes into the farther that in that than that in this particular case because this taking wasn't remain ended after removal it wasn't removed so whatever ramy and it happened here in a remand did happen that was under some one of the other of forty and then when you have a different type of remand it doesn't fall under fourteen forty seven for sending this starting over in state court when they brought the case out of state court into federal court we amended that added take claim to the district court show that it's capable plying taking the law so it's pointless  a waste of time to do this back and forth dance to try and get a marriage hurt and there's no surprise about disclaimers about the past a lot destroyed our business that's a take it take another minute you actually had some points that you wanted to make i want to just make the i made most of them on the production argument again this court it's not it's not a strict requirement any longer there's got to be some reason why we want to make state courts do something that the federal courts can do when the case is crystallized this case is crystallized everybody knows including the lower court judge and the opposing counsel everybody knows what we're claiming that th