(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; and

(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?

Whether a district court retains power to issue an alternative decision on the merits after dismissing a case for lack of subject matter jurisdiction, and whether an appellate court can affirm such an alternative decision