[00:00:00] Speaker 06:
Case number 22-7T01, Brown, Hopper, Gassel, Schaft, Seward, Fodder, Omder, Omde, Watson, Porturin, E.D.

[00:00:08] Speaker 06:
versus Sirius, Exxon, Radio, Inc., Mai Cha, and Gullian at balance.

[00:00:12] Speaker 06:
Mr. Bagdasarian for the at balance.

[00:00:14] Speaker 06:
Mr. Misty for the at balance.

[00:00:17] Speaker 04:
Good morning, Council.

[00:00:18] Speaker 04:
Mr. Bagdasarian, please proceed when you're ready.

[00:00:29] Speaker 01:
Good morning, Your Honor.

[00:00:30] Speaker 01:
This may please the Court.

[00:00:32] Speaker 02:
I'd like to start our argument today with the issue of whether the judgment is a final appealable order from the District Court here.

[00:00:41] Speaker 02:
As our briefing made clear, and as the cases this panel has identified make very clear, there can be no question that this is a final appealable order.

[00:00:51] Speaker 02:
In fact, the Service Employees International case from this Court is on all fours with our situation here.

[00:00:58] Speaker 02:
I'm happy to answer any questions the panel has on that.

[00:01:01] Speaker 02:
And if it doesn't have any questions, I'll turn to the question of whether this court should hear the appeal under 1295 or whether it can be transferred to the Federal Circuit.

[00:01:11] Speaker 05:
I mean, the finality question affects that too, right?

[00:01:13] Speaker 05:
Because in order for it to go to the Federal Circuit, in order for the Federal Circuit to hear the case, it would still have to be final.

[00:01:20] Speaker 02:
Yes, Your Honor.

[00:01:21] Speaker 02:
That is one of the prongs of the analysis.

[00:01:22] Speaker 02:
And I think because it is a final appeal order, that prong of the analysis

[00:01:25] Speaker 02:
purposes of transfer is readily satisfied.

[00:01:29] Speaker 02:
This is the second question under transfers, obviously, in the interest of justice.

[00:01:34] Speaker 02:
And that leads us to the very question about whether 1295 or is the federal circuit the exclusive jurisdiction over the underlying action that we have here, which is basically, from our perspective, an issue over a subpoena.

[00:01:49] Speaker 02:
And our argument under 1295, under the current iteration of 1295, is let's look at the text

[00:01:56] Speaker 02:
And the text of 1295 currently reads that any action in any district in the United States arising under any act of Congress relating to patents is within the exclusive jurisdiction of the Federal Circuit.

[00:02:12] Speaker 02:
Your Honor, our point is this is a subpoena case, this is a subpoena issue.

[00:02:16] Speaker 05:
So do you think the decisions that

[00:02:19] Speaker 05:
go against you, like Dorff in the Second Circuit, and the case from the Fourth Circuit, McCook.

[00:02:26] Speaker 05:
I can't remember the name.

[00:02:27] Speaker 05:
Thank you.

[00:02:28] Speaker 05:
Do you think those are different because the text has changed?

[00:02:31] Speaker 02:
Your Honor, yes, yes, yes, we do.

[00:02:34] Speaker 02:
We understand the argument on both sides.

[00:02:36] Speaker 02:
All those cases, the Farnhoffers presented the score, went off on the in part, based in part of.

[00:02:44] Speaker 02:
The previous iteration of the statute read, in whole or in part,

[00:02:48] Speaker 02:
Um, the current duration of the statute says arising under and I believe what Farnhofer has presented this court and all those cases that your honor reference, um, made a decision, including the federal circus, own decisions, um, the dwarf and the cook case all leads to the conclusion that the federal circuit has exclusive jurisdiction using the basin part way.

[00:03:12] Speaker 02:
And here we have a rising under.

[00:03:14] Speaker 02:
And legally, a rising under requires more of a direct claim, not a one-step or a two-step remove from the underlying act.

[00:03:21] Speaker 05:
But what other statute gave DDC jurisdiction other than as a piggyback on the patent action that's in the District of Delaware?

[00:03:32] Speaker 02:
And to piggyback off the jurisdictional of the underlying case in Delaware, there's no dispute there.

[00:03:40] Speaker 02:
Our only point under 1295, 1295's language does not require a tracing back to the original jurisdiction of the patent action between Fraunhofer and SiriusXM.

[00:03:52] Speaker 02:
That's the arising underlying.

[00:03:54] Speaker 02:
The basic law in part leads you more to that.

[00:03:58] Speaker 05:
But I guess my question is, something had to give the District Court for the District of Columbia jurisdiction.

[00:04:04] Speaker ?:
Of course.

[00:04:05] Speaker 05:
And what is it if it wasn't the patent jurisdiction that the District of Delaware had and then this is an adjunct to that?

[00:04:14] Speaker 05:
What's the other jurisdictional basis for the District Court for the District of Columbia?

[00:04:19] Speaker 05:
It can't be the federal rules, so it has to be some statute.

[00:04:22] Speaker 05:
And what statute is it?

[00:04:24] Speaker 02:
It is 1338, the original Delaware court, the jurisdiction to hear the underlying patent case.

[00:04:31] Speaker 02:
And the District of Columbia had its jurisdiction based on that statute.

[00:04:37] Speaker 02:
There's no disagreement there.

[00:04:38] Speaker 02:
Our only point under 1295, 1295 goes to whether or not the Federal Circuit has exclusive jurisdiction over a certain appellate map.

[00:04:49] Speaker 02:
And we looked at the text of that statute.

[00:04:51] Speaker 02:
And when we go back to the text of that statute, the current iteration of it really discusses arising under any act of Congress related to Pat.

[00:05:00] Speaker 02:
And that's the distinction we're making between the two situations.

[00:05:03] Speaker 02:
It is very much an issue of first impression.

[00:05:06] Speaker 02:
Not only in this court, as far as we can tell based on the case that Fonar was presented to it, this may be an issue of first impression because that new language came to being in 2011.

[00:05:16] Speaker 02:
And cases like this oftentimes don't get to this level that that quickly.

[00:05:21] Speaker 02:
But that's our distinction based on the text of 1295.

[00:05:25] Speaker 05:
OK, so just to follow it through one step further.

[00:05:30] Speaker 05:
The DDC action is a civil action.

[00:05:33] Speaker 05:
Right.

[00:05:35] Speaker 05:
Correct.

[00:05:35] Speaker 05:
Right.

[00:05:35] Speaker 05:
And so, does it arise, did the civil action in DDC, the one that you're trying to appeal here, did it arise under any statute?

[00:05:45] Speaker 02:
Did the District of Columbia action arise under any statute?

[00:05:51] Speaker 02:
The jurisdiction of the District of Columbia action was based in part on the underlying act, patent action in Delaware.

[00:06:01] Speaker 02:
That I agree with.

[00:06:02] Speaker 02:
So did it arise under that?

[00:06:04] Speaker 05:
Well, I'm making this distinction arising under... Right, so then, but if it didn't arise under that patent statute, did it arise under something else?

[00:06:13] Speaker 05:
Or are you just saying it didn't arise under anything?

[00:06:15] Speaker 02:
Well, it arose under the patent statute.

[00:06:20] Speaker 02:
But if that's true, then isn't the text satisfied?

[00:06:22] Speaker 02:
Well, that's my point is that it depends what arising under means.

[00:06:27] Speaker 02:
I'm making the distinction between a rising under in whole or in part, which is what the previous language was.

[00:06:33] Speaker 02:
And my only point is rising under is more of a direct link rather than I don't think there's a jurisdictional question.

[00:06:40] Speaker 02:
in our views relevant to the question of what federal circuses whose jurisdiction is important or not.

[00:06:46] Speaker 02:
I think the District of Columbia that have jurisdiction based on the jurisdiction conferred and piggyback on the jurisdiction in the original Delaware action, but when you look at the 1295 statute and we go back to the text of that, that I think that there, we look at that text and determine based on that text

[00:07:08] Speaker 02:
does it arise under?

[00:07:09] Speaker 02:
And the question is, can it be, does it have to be directly or do you need to trace it back to the original jurisdiction in the Delaware action?

[00:07:15] Speaker 02:
And it's our view.

[00:07:16] Speaker 02:
There's a reasonable view that that's, that does not need to.

[00:07:19] Speaker 05:
So let me just ask one more question because I think I keep asking the same question, but I just want to make sure I understand your argument, at least for your own benefit.

[00:07:26] Speaker 05:
For 1295 purposes, your view has to be, and I think it is that the DDC action did not arise under the patents because if it did,

[00:07:37] Speaker 05:
it has to go to the Federal Circuit.

[00:07:39] Speaker 05:
So your view has to be, for 1295 purposes, it did not arise under the patent laws.

[00:07:45] Speaker 05:
It did not arise under the patent statute because it was indirect.

[00:07:49] Speaker 05:
So then my question is, if it didn't arise under the patent statute,

[00:07:53] Speaker 05:
Did it arise under something else?

[00:07:55] Speaker 05:
What did it arise under?

[00:07:56] Speaker 05:
Or does it just not have to arise under anything?

[00:07:59] Speaker 02:
Well, it arose indirectly, not directly, and 1295 because there's another way to get to a policy restriction under 1291 as opposed to 1295.

[00:08:10] Speaker 02:
Our distinction between the two is which court is going to hear that appeal?

[00:08:15] Speaker 02:
And if this court accepts our view that indirect is insufficient, well then we stay in this court for all the reasons we've talked about.

[00:08:24] Speaker 02:
If rising under can be, you do need to trace it back to the original jurisdiction of the Delaware court, well then it is reasonable to transfer it to the federal circuit for the reasons we've articulated.

[00:08:36] Speaker 05:
So you're basically what you would do at the end of the day.

[00:08:38] Speaker 05:
I'm not saying this is wrong.

[00:08:40] Speaker 05:
I'm not saying it's right either.

[00:08:41] Speaker 05:
But what you would do at the end of the day is under 1295A1's current iteration, you would basically insert the word directly in front of arising under.

[00:08:48] Speaker 05:
And you would say, well, it did arise under the patent laws.

[00:08:51] Speaker 05:
That's why the DDC had jurisdiction.

[00:08:53] Speaker 05:
But it didn't directly arise under the patent laws.

[00:08:55] Speaker 05:
And that's what you would need to get to the Federal Circuit rather than our court.

[00:08:59] Speaker 02:
That view is a reasonable reading of 1295.

[00:09:03] Speaker 02:
We understand the overview of it.

[00:09:05] Speaker 02:
Certainly.

[00:09:07] Speaker 02:
And if this court accepts the other view, we would respect the request that the case be transferred to the federal circuit if this court doesn't retain jurisdiction.

[00:09:18] Speaker 02:
I'll reserve the balance of my time.

[00:09:19] Speaker 02:
Okay.

[00:09:20] Speaker 02:
Thank you, counsel.

[00:09:25] Speaker 01:
Mr. McPhee.

[00:09:32] Speaker 01:
Good morning and may it please the court.

[00:09:34] Speaker 03:
Ron Hoppress admits that this appeal should be dismissed for lack of jurisdiction or in the alternative, transferred in whole or part, whatever remains to the federal circuit.

[00:09:46] Speaker 03:
And I say that with some ambivalence because we would rather just have the case resolved on the merits here, be more efficient.

[00:09:53] Speaker 03:
But we're mindful of this court's careful watch on its own jurisdiction.

[00:09:58] Speaker 03:
But to that end, I'd like to start with a question that you posed regarding the two cases.

[00:10:04] Speaker 03:
Budnick and service employees, we do think that those cases are not quite on point for at least the following reason.

[00:10:13] Speaker 03:
In both of those cases, there was not only a finding of contempt, but also a sanction that was issued.

[00:10:20] Speaker 03:
So in Budnick, there was a finding that attorney's fees would be assessed.

[00:10:26] Speaker 03:
The only remaining issue was the amount of those fees.

[00:10:29] Speaker 03:
And then service employee, the same thing.

[00:10:31] Speaker 03:
There was an award of attorney's fees

[00:10:34] Speaker 03:
and also a conditional fee of, I think, $20,000 if the arbitration didn't occur within a specific time period.

[00:10:42] Speaker 03:
By contrast here, the district court made a finding of contempt and did ask for information about what fees Cronhoffer had incurred, but there was never any issuance of an actual sanction.

[00:10:56] Speaker 03:
The district court never said, I am going to award the attorney's fees once calculated,

[00:11:01] Speaker 03:
never said I'm going to give some fraction of those or a multiple of those or maybe some other fee or a non-monetary sanction or no sanction at all.

[00:11:10] Speaker 03:
And that distinction really does make a difference.

[00:11:12] Speaker 03:
If you look at service employees, they cite to Wright and Miller, the treatise 3917, that actually has an articulation of this rule.

[00:11:22] Speaker 03:
They say a determination that contempt has occurred is not final.

[00:11:29] Speaker 03:
if the question of sanctions is postponed.

[00:11:32] Speaker 03:
And Ryden Miller, in footnote four, they cite a number of appellate decisions in support of that rule.

[00:11:39] Speaker 03:
I can cite a few of those for the benefit of the support.

[00:11:42] Speaker 03:
So one is Petrolios Mexicanos versus Crawford, 826 Federal, second 392 at 398.

[00:11:50] Speaker 03:
Quote, a contempt decision's finality and appealability is composed of two parts.

[00:11:55] Speaker 03:
One, a finding of contempt, and two,

[00:11:58] Speaker 03:
an appropriate sanction for that contempt.

[00:12:02] Speaker 03:
And you see the same rule in the Ninth Circuit Weyerhaeuser case.

[00:12:06] Speaker 03:
There's an SEC versus Naftali case in the Eighth Circuit and other cases that are cited there in Wright and Miller.

[00:12:14] Speaker 03:
So I should say all of these cases now are consistent with what you see in Budnik, which is that you have finding of contempt and a sanction to be applied.

[00:12:26] Speaker 03:
And it's further consistent with a case that

[00:12:29] Speaker 03:
that appellant cited actually an older Supreme Court case, Alexander versus US, which says that the right of review arises once the court punishes the witness for contempt of the order.

[00:12:43] Speaker 03:
That's on page four of the reply.

[00:12:45] Speaker 03:
So that language we think supports the Wright Miller rule as well.

[00:12:50] Speaker 03:
And we did look to see if there was even a single case where a finding of contempt without a sanction was found to be final and appealable, and we did not find

[00:12:59] Speaker 03:
So we think that the better view, the best view of the law on this finality issue is that this case is not final.

[00:13:06] Speaker 03:
We do not have that sanction that gets you over the line.

[00:13:10] Speaker 05:
So in service employees, you think what distinguishes it is the $20,000 sanction?

[00:13:15] Speaker 03:
$20,000 additional sanction, as well as there was a finding that attorney's fees would be levied.

[00:13:21] Speaker 05:
So the finding that the fees would be levied, even though the amount of the fees hadn't been determined?

[00:13:26] Speaker 03:
Correct.

[00:13:26] Speaker 03:
And we think that's a significant difference.

[00:13:28] Speaker 03:
It's an actual sanction of punishment.

[00:13:31] Speaker 03:
It is concrete in nature, even though some of the mechanics, the amount, has yet to be determined.

[00:13:37] Speaker 00:
Nick, I'm sorry.

[00:13:37] Speaker 00:
Oh, please.

[00:13:38] Speaker 00:
Let me make sure I understand your argument.

[00:13:42] Speaker 00:
Suppose I'm starting from the point that federal circuit has exclusive jurisdiction.

[00:13:48] Speaker 00:
And so the inquiry has nothing to do with the finality question that you're now talking about.

[00:13:53] Speaker 00:
It has to do with

[00:13:55] Speaker 00:
transfer.

[00:13:56] Speaker 00:
They've raised the request to have this transfer under the statute.

[00:14:00] Speaker 00:
We're supposed to look at that.

[00:14:02] Speaker 00:
And if the conditions are met, we're supposed to send it to the Federal Circuit.

[00:14:07] Speaker 03:
Yes.

[00:14:07] Speaker 03:
So that takes us to the next issue, which is?

[00:14:10] Speaker 00:
I'm saying suppose that is the issue in my view.

[00:14:13] Speaker 00:
In other words, I, as a federal judge, am sitting on a circuit that does not have exclusive jurisdiction to hear this.

[00:14:18] Speaker 00:
Another circuit has exclusive jurisdiction.

[00:14:22] Speaker 00:
and you're not disputing that the Federal Circuit has exclusive jurisdiction, right?

[00:14:27] Speaker 00:
That is correct.

[00:14:28] Speaker 00:
Okay, so if that's, we're both starting there, it seems to me that's the starting point.

[00:14:33] Speaker 00:
This is a Federal Circuit case, not a DC Circuit case.

[00:14:38] Speaker 00:
And so now, in your view, how should we proceed?

[00:14:42] Speaker 03:
Yes, I fully agree with that, Your Honor.

[00:14:44] Speaker 03:
The question of transfer has implicit in it a question of would there be

[00:14:50] Speaker 03:
in the transfer report, which is why we then ask that initial step, is there actual a final decision to review at all?

[00:14:59] Speaker 03:
So I believe that question comes into the transfer issue.

[00:15:03] Speaker 03:
But there is a larger question that has been raised just now and in the papers, which is, is this case properly within the scope of the Federal Circuit's exclusive jurisdiction to begin with?

[00:15:14] Speaker 03:
I think that actually is a very, very straightforward issue.

[00:15:18] Speaker 03:
The statute itself

[00:15:20] Speaker 03:
Supreme Court case law, the Federal Circuit precedent, and every other appellate court to consider if this issue has ruled without question, without variance, that an ancillary discovery proceeding that is conducted in service of a patent case falls within the exclusive jurisdiction of the Federal Circuit.

[00:15:40] Speaker 05:
So to be within the exclusive jurisdiction of the Federal Circuit and something that could be appealed to the Federal Circuit, it has to be a final decision.

[00:15:47] Speaker 05:
Yes, that's right.

[00:15:48] Speaker 05:
And then to judge that,

[00:15:50] Speaker 05:
we judge finality by reference to our first of all, do we judge it?

[00:15:55] Speaker 05:
And if we judge it, do we judge it by reference to DC Circuit finality law or federal circuit finality law?

[00:16:02] Speaker 05:
Since the question is whether it could have been brought into the federal circuit transfer purpose.

[00:16:07] Speaker 03:
That's an interesting question, Your Honor.

[00:16:09] Speaker 03:
I don't know that there's a distinction between DC Circuit law and federal circuit law.

[00:16:15] Speaker 05:
Well, not the way you're looking at it because you think it's non final either way.

[00:16:18] Speaker 05:
But what I'm saying is

[00:16:20] Speaker 05:
If it's complicated under DC Circuit law because of the service employees decision that you've tried to distinguish, but it's maybe not as straightforward as might be optimal for you.

[00:16:31] Speaker 05:
Doesn't matter because if it's a case that needs to have been, that it could have been brought, needs to be the case that it could have been brought into Federal Circuit.

[00:16:41] Speaker 05:
And the Federal Circuit would apply its own finality rules to decide whether it's final for purposes of bringing in the Federal Circuit.

[00:16:49] Speaker 05:
which seemingly would put this in the can of Federal Circuit finality law rather than DC Circuit law.

[00:16:55] Speaker 03:
I think that's right, Your Honor.

[00:16:57] Speaker 03:
I think that's the better rule.

[00:16:59] Speaker 03:
It falls more clearly than in the scope of what the exercise is here when you look at transfer.

[00:17:05] Speaker 03:
I will say I don't think it makes a difference in this particular case either way, but I do think that's right.

[00:17:12] Speaker 05:
I did want to.

[00:17:13] Speaker 05:
And then can I ask on this question of whether it actually belongs in the federal circuit?

[00:17:18] Speaker 05:
So you heard your argument from your from opposing counsel that the stat language of the statute has changed since the decisions that you understand very understandably rely on that were completely parallel except that something happened in the interim and the text changes.

[00:17:34] Speaker 05:
So now it speaks in terms of arising under.

[00:17:36] Speaker 05:
And what do you make of the argument that, well, arising under basically means directly arising under, which is something more than the one step removed connection to the patent laws that exists when the discovery dispute is in one court and the underlying patent action is in a different court?

[00:17:53] Speaker 03:
Yes, I see no basis for that interpretation whatsoever.

[00:17:56] Speaker 03:
I certainly didn't hear any authority or case law in support of that interpretation.

[00:18:00] Speaker 03:
I think that whatever change in language in the statute is a distinction without a difference

[00:18:06] Speaker 03:
that the authority, the jurisdiction of the D.C.

[00:18:12] Speaker 03:
District Court had to arise from somewhere.

[00:18:15] Speaker 03:
And the only source we've been able to identify that is, in fact, 1338.

[00:18:20] Speaker 05:
So you think the D.D.C.

[00:18:21] Speaker 05:
action arose under the patent statute?

[00:18:25] Speaker 03:
Absolutely.

[00:18:26] Speaker 03:
And that's consistent with all the prior cases we see.

[00:18:30] Speaker 03:
We can't just imagine a jurisdiction.

[00:18:32] Speaker 03:
Certainly, we've seen that the federal rules themselves

[00:18:35] Speaker 03:
Rule 45 of the federal rules of procedure does not grant jurisdiction to district courts.

[00:18:40] Speaker 03:
And the case law is clear on that.

[00:18:42] Speaker 03:
It had to come from somewhere.

[00:18:43] Speaker 03:
The only source that is available here is 1338.

[00:18:46] Speaker 03:
It's an open and shut case.

[00:18:48] Speaker 03:
I don't see any reason why that statutory language change makes any difference here.

[00:18:53] Speaker 00:
There are two ways we might look at when we think about transferring this to the federal search.

[00:19:01] Speaker 00:
We could look at it and look at the statute and say, we don't think the federal circuit would take this because it's not a final order.

[00:19:08] Speaker 00:
And they have a lot of case law that says contempt orders, pending sanctions are not fine.

[00:19:13] Speaker 00:
So they wouldn't take it.

[00:19:14] Speaker 00:
That's undisputed.

[00:19:15] Speaker 00:
The federal circuit has that law.

[00:19:17] Speaker 00:
So one possibility would be for us to say, I want to make sure, I want to understand what your thinking is.

[00:19:25] Speaker 00:
To say, therefore, we just dismissed.

[00:19:27] Speaker 00:
We don't have any jurisdiction.

[00:19:29] Speaker 00:
They wouldn't take it, so it's over.

[00:19:31] Speaker 00:
The other thing would be to say, and I think I know what you're going to say, I want to say, that the Federal Circuit has never expressed a view as to how they'd handle a situation if it arose as in-service employees.

[00:19:45] Speaker 00:
And that presents a different inquiry, and they haven't spoken on it.

[00:19:49] Speaker 00:
So we should simply transfer it, and they can handle the case however they want.

[00:19:53] Speaker 00:
The only thing we know is we don't have any jurisdiction.

[00:19:56] Speaker 00:
So let them do it.

[00:19:59] Speaker 00:
I would say, Your Honor, the first option, I think, is... Well, I know what you'd prefer, but what's your reaction to the second?

[00:20:06] Speaker 00:
Obviously, you prefer the first.

[00:20:09] Speaker 00:
I mean, the first is clean and easy, but there is, you can make the argument that in the cases in which the Federal Circuit has pronounced, if sanctions are still pending, it's not final.

[00:20:21] Speaker 00:
If the Federal Circuit has case law, there's no question.

[00:20:24] Speaker 00:
But you can say service employees raise a different situation.

[00:20:28] Speaker 00:
They have never spoken about how you handle the finality question in a service employees type case.

[00:20:36] Speaker 00:
I'm not saying that DC law binds them.

[00:20:39] Speaker 00:
I'm just saying, as far as I can tell, the federal circuit has never addressed that situation.

[00:20:45] Speaker 00:
And I'll be very honest, Your Honor.

[00:20:46] Speaker 03:
Candidly, I think either approach could be acceptable.

[00:20:51] Speaker 03:
I don't know that the case law clearly mandates one or the other.

[00:20:53] Speaker 03:
I don't know that we really have a preference either way.

[00:20:56] Speaker 03:
We're looking to get this resolved as efficiently as we can.

[00:21:00] Speaker 03:
Thanks.

[00:21:00] Speaker 04:
Thank you.

[00:21:01] Speaker 03:
Thank you, council.

[00:21:06] Speaker 04:
Mr. Bagsine will give you two minutes for your rebuttal.

[00:21:13] Speaker 01:
Thank you, your honor.

[00:21:15] Speaker 01:
Just a couple of points.

[00:21:17] Speaker 02:
The only, the sanction here, and we disagree with the sanction, was the contempt.

[00:21:23] Speaker 02:
The only thing left for the district court to determine is what she asked for, is the amount of monetary sanctions, attorneys fees, what have you.

[00:21:32] Speaker 02:
That makes this on all fours with the service employees case.

[00:21:36] Speaker 02:
That's all it's left.

[00:21:39] Speaker 02:
The question about whether it was raised regarding whether this court should decide

[00:21:44] Speaker 02:
the question of appealability under service employees or go to the federal circuit.

[00:21:52] Speaker 02:
I think under the analysis, it makes sense for this court to apply the service employees' case, since part of the transfer analysis needs to be determined as part of that.

[00:22:01] Speaker 02:
But from our perspective, all we're looking for is to have an appellate review in some court.

[00:22:07] Speaker 02:
And if that means going to the federal circuit, we'll do it there.

[00:22:11] Speaker 02:
If that means having her appeal heard here,

[00:22:14] Speaker 02:
That's fine with this.

[00:22:15] Speaker 02:
We understand we have to figure out the jurisdiction, which court has proper jurisdiction.

[00:22:20] Speaker 02:
If you apply to service employees, there's no question they have final availability.

[00:22:25] Speaker 02:
And then the question becomes under 1295, which we're going to discuss.

[00:22:30] Speaker 02:
If the court decides to choose to say, well, Federal Circuit looks like you have exclusive jurisdiction over this, well, you decide it.

[00:22:37] Speaker 02:
I don't know that we're opposed to that in any way.

[00:22:41] Speaker 02:
our only point is to make sure that she has some form of review.

[00:22:45] Speaker 02:
Our concern with the law office raising this issue was try to avoid any appellate review altogether.

[00:22:51] Speaker 02:
It sounds like we can now abandon that argument, which is somewhat comforting, but all Ms.

[00:22:55] Speaker 02:
Nguyen is looking for is to have an appellate review at some point.

[00:23:00] Speaker 02:
And it does make sense for it to happen now, whether it's in this form.

[00:23:02] Speaker 05:
Well, even for penality purposes, there's no doubt that there'll be appellate review at some point.

[00:23:06] Speaker 05:
It's just a question of whether it's premature, right?

[00:23:07] Speaker 05:
Because once the attorney's fees are settled, then everybody agrees there's

[00:23:10] Speaker 02:
I agree with you, absolutely.

[00:23:12] Speaker 02:
I'm pointing out that they tried to raise in their brief the ability of the court to take a peek at it and just dismiss it outright.

[00:23:18] Speaker 02:
I'm arguing to you that that is not an appropriate outcome based on the case.

[00:23:24] Speaker 02:
Thank you, Your Honors.

[00:23:25] Speaker 02:
Thank you, Council.

[00:23:26] Speaker 02:
Thank you to both Council.

[00:23:27] Speaker 02:
We'll take this case under submission.