1. “Whether a district court, after first deciding it lacks subject matter jurisdiction and dismissing with prejudice a cause of action, retains the power to declare an ‘alternative’ decision on the merits despite the apparent ‘advisory’ character of any such ‘alternative’ decision.”
2. “Whether a court of appeals has the power to affirm a decision of a district court issued ‘in the alternative’ after that district court first decided it lacked subject matter jurisdiction to hear the cause of action on the merits.”
