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Case number 17-1024 et al.

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Mexicam Flower Inc.

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Petitioner versus Environmental Protection Agency.

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Mr. Holmbarb for the petitioners.

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Ms.

[00:00:12] Speaker 00:
Carlsson for the respondent.

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Mr. Lorenzen for the intervener respondent.

[00:00:17] Speaker 03:
Good morning.

[00:00:20] Speaker 02:
Thank you, Judge Rogers, and may it please the Court.

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The briefing in this case has narrowed the issues to a single one, whether the petitions for review were timely filed.

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Petitioners and respondent EPA say they were, interveners say they were not.

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If the petitions were timely filed, there's no dispute about what should follow.

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The petition should be granted, the rule should be vacated to the same extent as the Mexic-M1, and the case should be remanded to the agency.

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We've asserted a number of different grounds for rejecting interveners' claim of untimeliness.

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but unless directed elsewhere by the court, I plan to focus my argument on what we consider to be the most straightforward way to resolve this case, which is collateral estoppel.

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In Mexicam 1, a claim of untimeliness was raised and contested by the parties, both in the briefs and at oral argument.

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The court nevertheless granted relief to petitioners and thus necessarily rejected the jurisdictional objection.

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This case involves the same issue and the same parties.

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So collateral estoppel bars, interveners claim here.

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Collateral estoppel applies to a jurisdictional issue in the same way it applies to any other.

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Interveners do not dispute this.

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And while the court may not have explicitly discussed the timeliness issue in Mexi-Chem 1, that makes no difference, at least as far as collateral estoppel is concerned.

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All that matters is whether the issue was raised and contested, and whether the court necessarily decided it.

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Interveners do not dispute this either.

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What do interveners dispute?

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In their brief, they make only a single argument on collateral estoppel, which is that the jurisdictional issue wasn't necessarily decided because the court's statements in Mexicum 1 about whether EPA's position

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on what the statute meant was new or old, redicta.

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At least as far as our collateral estoppel argument is concerned, this is a non sequitur.

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Our collateral estoppel argument does not depend on what this court said in Mexicam 1 about whether EPA's position was old or new.

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But we have different parties in this case.

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At least we have one different party in this case, both.

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That's right, Boeing was not a party in Mexicam 1.

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Boeing moved to intervene in this case.

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It was granted leave to intervene.

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It hasn't participated since.

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So it's obviously not asserting a jurisdictional objection and perhaps more fundamentally, at least based on EPA's representation, which in turn is based on EPA's communication with counsel for Boeing.

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It's our understanding that Boeing supports partial vacator in this case.

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In other words, it is now effectively aligned with petitioners and EPA.

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So the only parties asserting the jurisdiction.

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How do we know any of that?

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I mean, how do we know that Boeing isn't perfectly pleased to join the jurisdictional objections that have been raised?

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Well, I guess I would say two things.

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One is it hasn't said that.

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It had the ability to participate.

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It could have filed joint intervenors brief.

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It decided not to do that.

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The other thing is, based on EPA's representation, it's not only not aligned with intervenors, it's now aligned with petitioners in EPA.

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So from your perspective, it really doesn't matter which position it's taking?

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I'm sorry, which position Boeing is taking?

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Boeing is taking because the collateral stopper would apply to anyone who was in Mexico.

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Mexican one, and then if Boeing wants to raise any objection, it's free to do so.

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That's right.

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I mean, if Boeing had participated and filed a brief and raised a jurisdictional objection, I think our collateral estoppel argument would be a lot more difficult.

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I think we'd still have the story of decisis argument, and we'd still have the argument we make on the merits.

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But it would be different if Boeing were participating in asserting this objection.

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Unless the Court has further questions at this time, I'd like to reserve the remainder of my time for rebuttal.

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Good.

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All right, Council for Respondents.

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May it please the Court, my name is Ben Carlisle from the Department of Justice on behalf of EPA.

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At counsel's table are Diane McConkie and Jan Tierney from EPA's Office of General Counsel.

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EPA, like petitioners, asks only that the court reach the same result on materially identical facts as it did in Mexicum 1 and refuse to allow interveners a fourth bite at the apple to litigate this court's jurisdiction.

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It is not disputed in this case that the facts are materially identical to those in Mexicum 1.

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And it is not disputed that the jurisdictional issue that interveners raise is the exact same issue that was raised in Mexicum 1 and expressly and repeatedly briefed.

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EPA's opening brief made this argument directly.

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Petitioners vigorously disputed it.

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And interveners and petitioners raised it again in their petitions for rehearing.

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It is also not disputed that the court made the exact findings necessary to resolve this issue.

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The court found both that EPA had previously stated it did not possess the authority

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at issue, and that the 2015 rule represented, quote, a new interpretation of EPA's authority.

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The maximum one majority restated this conclusion multiple times.

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So Intervenor points to some record evidence suggesting that the 1994 rule really anticipated the situation of the 2016 rule.

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Why isn't that a good argument?

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Respectfully, Your Honor, because it is foreclosed by both stare decisis and collateral estoppel.

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That is an argument on the substance of the jurisdictional issue.

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Well, it goes to timeliness.

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But it is our view that the timeliness question is decided by Mexicum 1.

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It's the same findings that issue in Mexicum 1 as to whether EPA changed its interpretation.

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And our view is that the court made the findings necessary to resolve that question.

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So I just want to be clear on your position.

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You're saying it does or does not matter whether Mexican 1 decided there was a change in interpretation by the agency.

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Respectfully, Your Honor, it does matter that Mexican 1 decided that issue.

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That is what gives this stare decisis effect.

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And therefore, if intervener were correct that the 1994 rule

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essentially anticipated the situation you face now.

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Why doesn't that give some pause to your decision?

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Because that's an argument, Your Honor, that the Mexicam 1 panel was wrong.

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And this court is bound by the opinion of Mexicam 1, even if it happens to disagree with that conclusion.

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So I'm intrigued by the notion that, hypothetically, had this court ruled

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and subsequently were convinced that it had made an error that was, let's just say, in my hypothetical, clear on the record.

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And that has now been brought to the court's attention.

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The only thing we could do would be to rehear the case in bank.

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I believe that's correct, Your Honor.

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Interveners raised this issue on petitions for rehearing in Mexicum 1, and that was the proper venue to raise that.

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They then petitioned for certiorari and alluded to this issue, but didn't offer it as a question presented.

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The mandate is issued, and that decision has a preclusive effect at this point.

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I'll note also, Your Honor, that the court decided this issue expressly citing the record in the 1994 rule, particularly EPA's response to comments and the Oz Technology Petition.

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And this was a determination that was not dicta, as respondent intervenors claim, because it was pivotal to the question of jurisdiction.

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Why are you arguing

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for us to issue the same relief in this case as we did in Mexican 1 when you're taking the position in rulemaking that you can't really administer the relief issued in Mexican 1 because it's unworkable.

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That's the subject of a companion or

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somewhat related case, the NRDC v. Wheeler case.

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Yes, Your Honor.

[00:10:00] Speaker 06:
Why, if you're saying that we did something in Mexicum 1 that's unworkable for you, that we should issue the same unworkable ruling again?

[00:10:12] Speaker 01:
Your Honor, I think what it

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comes down to is, well, I would make two points.

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The first is that no one has disputed that if this court holds that it, in fact, has jurisdiction, it should reach the same result as in Mexican 1.

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The answer that goes more directly to the substance of your question is we think Mexican 1 is clear, at least to the extent in which it held that the EPA's authority was limited.

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as a practical matter, implementing that vacatur is difficult in light of EPA's existing regulations.

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And the court in that case did not consider what we consider to be an important issue there as to severability.

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But that issue is teed up in NRDC v. Wheeler.

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And I think we fully expect it will be resolved there.

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Ultimately, whatever Mexicum 1 did, however NRDC v. Wheeler goes,

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It's our position that this court is bound to reach the same result in Mexicum 2 as it did in Mexicum 1.

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Your Honor, we would also note in agreement with petitioners that we feel that the case for collateral estoppel here is even stronger than the case for stare decisis.

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Not only was this issue actually litigated in proceedings in which interveners participated,

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It was briefed multiple times, and the interveners briefed this issue.

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Judge Wilkins, in response to your question regarding Boeing's position in this case, they have represented to me, and we noted in, I believe, our proposal in the briefing schedule in this case.

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And I believe again in our brief that they support partial vacatur, and they have chosen not to participate in this proceeding.

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I didn't see that.

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Maybe I missed it.

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Anyway, I can go back and look.

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All I saw was that Boeing has not filed a claim in this case.

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I believe there is a – I'm confident there is a footnote in at least the proposal we made on the briefing schedule that notes Boeing's position.

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I cannot recall off the top of my head whether we reiterated that in our brief.

[00:12:33] Speaker 06:
Your Honor, is there – There's – the interveners argued in their brief, page 19,

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that EPA banned sulfur hexafluoride as a substitute propellant because of its global warming potential.

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And that was done in 1996.

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And so they say that that showed clearly that over 20 years ago, this issue was foreshadowing.

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What's your response to that?

[00:13:03] Speaker 01:
I think our primary response, Your Honor, is, again, that goes to the substance of the jurisdictional question and that that is essentially an argument that Mexican 1 got this issue incorrect but doesn't address the key question of whether or not this court is bound by that.

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The other response I would give more on the substance is

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regardless of whether EPA banned that chemical previously based on its global warming potential, what we're dealing with here is something different and new where with HFCs, EPA has for the first time

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changed the listing for a non-ozone-depleting chemical from unacceptable to acceptable.

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That wasn't, as I understand it, the situation with that chemical.

[00:13:59] Speaker 06:
You mean from acceptable to unacceptable?

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Correct.

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If I misspoke, I apologize.

[00:14:05] Speaker 06:
So your argument is that sulfur hexafluoride had never been

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deemed acceptable under the SNAP program by EPA.

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So it was deemed unacceptable, but it had never been deemed acceptable prior to that.

[00:14:28] Speaker 01:
Yes, that is correct.

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I see that I am over time.

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Unless there are any other questions, we would ask that the petitions be granted to the same extent as in Mexican 1.

[00:14:43] Speaker 03:
Thank you.

[00:15:04] Speaker 04:
Pardon us while I shift seats.

[00:15:05] Speaker 04:
Good morning, Your Honors.

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Thomas Lorenzen for the intervener respondents.

[00:15:12] Speaker 04:
Your Honors, the Mexicum I court never addressed its jurisdiction.

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Collateral estoppel, stare decisis do not apply here.

[00:15:23] Speaker 04:
for a collateral estoppel to apply, the issue not only must have been necessarily decided, it must have been actually decided.

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And there is nothing in the court's opinion that goes to actual decision and jurisdiction.

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What's your best case that the court actually has to say something when the issue is presented to it and argued and even discussed

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during oral argument?

[00:15:44] Speaker 04:
Well, there are a number of cases, including the Supreme Court's case in the Arizona school tuition decision, that say that jurisdictional issues that are decided sub silencio have no precedential effect.

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That is what petitioners are trying to argue here, is that even though the court is silent on jurisdiction, the court somehow decided this.

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I would point to, for instance, the dissenting opinion in Mexican 1, where Judge Wilkins noted

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that the statements regarding these alleged change in positions all occur in the context of EPA's chef on step one analysis where statements regarding the agency's positions are simply not pertinent.

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So, and again, you know, I can refer your honors to specific statements that the dissent makes.

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I mean, it was an excellent dissent.

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It was an outstanding dissent, your honor.

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It doesn't say anything about jurisdiction, though, right?

[00:16:41] Speaker 04:
It does not, but neither did the majority, and I, you know, I take it that the dissent is responding to what the majority said, and the majority said

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the agency's statements regarding its position are relevant to our Chevron step one analysis because they show the statute is clear.

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Actually, what the majority says is that the statute is clear because the word replace is capable of only one possible meaning.

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And as Your Honor points out, the agency's positions on what the statute means are just not pertinent to that inquiry.

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The problem you have is that if the court is ruling

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that there is a changed position.

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The court has to understand that, self-evidently, they have jurisdiction.

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And so the big difficulty you have here, the court is quite clear in saying, in the original position, right or wrong, they are quite clear in saying the agency has changed its position, and therefore jurisdiction is clear.

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There's really nothing to talk about.

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There are lots of cases, I'm sitting here thinking, lots of cases I've heard where someone has said there's no jurisdiction.

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We don't even deal with it because it's pretty straightforward.

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We have it merely because a party, and I understand your responses, but it was raised and it was raised and it was raised, but there are a couple ways you can respond.

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You can say your jurisdictional argument has no merit, or you can say the thing that kills your jurisdictional argument, that is a changed position, is here and we find it.

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I understand, Your Honor.

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First of all, this is, I don't think, by any means, a case where jurisdiction is self-evident.

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Self-evident jurisdiction might occur where... No, no, no.

[00:18:28] Speaker 05:
It's only self-evident if the court finds it's a changed position.

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I know, but I think that the court really didn't grapple with that, and I will tell you why.

[00:18:35] Speaker 05:
Well, I mean, if there's a changed position no one argued will wait, they're still out of the time limits, because then everyone understood if there was a changed position, they were within the time limits.

[00:18:46] Speaker 04:
Well, again, that entire discussion occurs within the context of the court's Chevron step one analysis.

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It appears to be rhetorical, flourishes, that buttresses its conclusion that the statute is absolutely clear on its face.

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What the court never grapples with, indeed never even cites,

[00:19:01] Speaker 04:
Let me quote you the language of the actual regulation promulgated in 1994.

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This is 40 CFR 82.174 D. It provides in its entirety this.

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No person may use a substitute after the effective date of any rulemaking adding such substitute to the list of unacceptable substitutes.

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That's it.

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That is the clear language of the regulation promulgated in 1984.

[00:19:30] Speaker 04:
I'm sorry, 1994.

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That regulation remains unchanged to this date.

[00:19:34] Speaker 04:
The 2015 rule... You're fighting the merits.

[00:19:37] Speaker 04:
No, no.

[00:19:37] Speaker 05:
I'm trying to... I understand.

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It's not that you don't have an argument there, as the brilliant dissent pointed out.

[00:19:47] Speaker 04:
Extremely brilliant dissent, yes.

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But the problem is the court previously resolved against you.

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I disagree that the court resolved the question at all.

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Again, its statements regarding this change of position

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in addition to being wrong, in our view, and I get that's the merits, are nothing but dictum.

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They occur in the context and entirely in the context of his Chevron step one analysis, which, as the dissent so brilliantly notes,

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It's not relevant to that.

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It's not pertinent.

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The agency's statements of its interpretations have no bearing on whether the statute is clear or unclear.

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And the court's Chevron Step 2 analysis is one sentence and simply says, given our interpretation of the word replace, this petitioners also lose on Chevron Step 2.

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What more do they have to say?

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Once again, I think they need to satisfy themselves.

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Forget whether right or wrong, but what more, given that's the way they chose to analyze it, what more was there to say?

[00:20:50] Speaker 04:
I think what they had to say was that this is a timely challenge to the 2015 rule or a permissible years late, decades late challenge to the 1994 rule.

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for one of the reasons that's permissible under Clean Air Act Section 307B.

[00:21:08] Speaker 04:
There is no mention of Section 307B or a 60-day jurisdictional limit.

[00:21:13] Speaker 04:
There is no mention of any of the case law regarding timeliness of petitions and whether things are challenges to the current rule or prior rule.

[00:21:21] Speaker 04:
There is no mention of any of the case law regarding late challenges to old rules.

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None of this is addressed.

[00:21:27] Speaker 04:
Instead, we have a couple of sentences that say the majority thinks EPA

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previously held a different interpretation.

[00:21:35] Speaker 04:
Look at these quotes from the responses to comments.

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I would know that there are similar quotes in that initial rule.

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And again, we're going right back to the merits again.

[00:21:43] Speaker 04:
This was all raised in 1994.

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And while the majority in Mexican 1 cites to the responses to the comments, this is from the preamble to the rule itself.

[00:21:57] Speaker 04:
Let me quote.

[00:21:58] Speaker 04:
A number of commenters believe that EPA's SNAP program has no authority to restrict existing substitutes, which companies may have switched to in an effort to eliminate the use of CFCs prior to the publication of this final rule.

[00:22:12] Speaker 04:
EPA believes that Class I and Class II substances are replaced within the meaning of Section 612C each time a substitute is used, so that once EPA identifies an unacceptable substitute, any future use of such substitute is prohibited.

[00:22:27] Speaker 04:
Under any other interpretation, EPA could never effectively prohibit the use of any substitute, as some user could always start to use it prior to EPA's completion of the rulemaking required to list it as unacceptable.

[00:22:39] Speaker 04:
And that's what happened with sulfur hexafluoride.

[00:22:41] Speaker 04:
It had been switched to before the rule was promulgated.

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And so, no, it didn't get placed on the acceptable list, but people were using it as a replacement for ozone depleting substances.

[00:22:53] Speaker 04:
At the time the rule was promulgated, EPA looked at the health effects.

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and said, no, you can't use this anymore because it's got this global warming potential.

[00:23:04] Speaker 04:
And it prohibited everything.

[00:23:05] Speaker 06:
But that doesn't really help you because it's apples and oranges.

[00:23:07] Speaker 06:
I mean, sulfur hexafluoride was not a substance that EPA looked at, evaluated, and said, yes, this is an acceptable substitute.

[00:23:17] Speaker 06:
It's non-ozone-depleting.

[00:23:19] Speaker 06:
And we are putting it on the acceptable list.

[00:23:23] Speaker 06:
and then changed its mind later and said, we're taking it off of the acceptable.

[00:23:28] Speaker 04:
Yeah, I don't think, with all respect, Your Honor, that that is apples and oranges.

[00:23:32] Speaker 04:
The holding of the majority of Mexicans won is that 612C cannot apply to bar anyone who has previously switched away from an ozone-depleting substance from ceasing use of the substitute.

[00:23:50] Speaker 04:
It's an absolute ruling by the court.

[00:23:53] Speaker 04:
Chevron, step one, they say.

[00:23:54] Speaker 04:
Replace means the first time you use something and only the first time.

[00:23:57] Speaker 04:
So it's not apples and oranges.

[00:23:59] Speaker 06:
And it shows that... But the court wasn't ruling on whether the EPA exceeded its authority when it delisted, or I guess it didn't even delist, when it just said sulfur hexafluoride isn't

[00:24:14] Speaker 06:
is an unacceptable substitute.

[00:24:17] Speaker 04:
The court wasn't passing on that issue.

[00:24:19] Speaker 04:
Well, there was no court decision there.

[00:24:21] Speaker 04:
This is just an EPA action.

[00:24:24] Speaker 06:
All I'm saying, though, is that that example doesn't undermine the majority's reasoning in Mexicum 1 because the majority wasn't passing upon it.

[00:24:43] Speaker 06:
I don't even think it was really discussed in the briefing.

[00:24:46] Speaker 06:
It's definitely not discussed in the opinion.

[00:24:49] Speaker 04:
Right.

[00:24:50] Speaker 04:
But what this shows is the agency's position about the absolute bar on use has been consistent from 1994.

[00:24:57] Speaker 04:
It says so in the 94 rule.

[00:25:00] Speaker 04:
It says so in the placement of part

[00:25:08] Speaker 04:
It says so in the placement of the sulfur hexafluoride on the unacceptable list.

[00:25:12] Speaker 04:
There was no limitation of the effect of that move to those who hadn't yet switched, which we would have expected were the majority right.

[00:25:21] Speaker 04:
Now, again, we're getting into the merits, and I understand your... You're in the merits.

[00:25:24] Speaker 05:
There's no question.

[00:25:26] Speaker 05:
I mean, you're saying you're in a hopeless situation.

[00:25:30] Speaker 05:
If the majority in the prior case had started the analysis by saying, there's been a whole lot written about jurisdiction, we find no merit because the agency has changed its position, and then the rest of the opinion is exactly the same, then you're out of court.

[00:25:44] Speaker 05:
Is that what you're saying?

[00:25:46] Speaker 04:
Well, I think that, first of all, the court didn't say anything about jurisdiction.

[00:25:51] Speaker 05:
No, no, no.

[00:25:51] Speaker 05:
Come on, counsel.

[00:25:51] Speaker 05:
Come on.

[00:25:52] Speaker 05:
You know what I'm talking about.

[00:25:53] Speaker 04:
I understand.

[00:25:53] Speaker 04:
Had the court expressly resolved jurisdiction?

[00:25:56] Speaker 05:
Had the court done what I just said, one sentence,

[00:25:59] Speaker 05:
There's been a lot argued about jurisdiction.

[00:26:03] Speaker 05:
We find no merit because, as we will explain, the agency has changed its position.

[00:26:09] Speaker 05:
That's one sentence.

[00:26:10] Speaker 05:
Is that enough?

[00:26:12] Speaker 04:
Our remedy in that case, Your Honor, would have been to seek further review of the decision.

[00:26:17] Speaker 04:
I agree.

[00:26:17] Speaker 05:
You did seek further review, and you lost at both places.

[00:26:20] Speaker 05:
Well, one is summary.

[00:26:22] Speaker 05:
All right, let's assume the further review isn't going to make it.

[00:26:25] Speaker 05:
Are you in trouble now?

[00:26:27] Speaker 05:
You can't make your argument now, right?

[00:26:30] Speaker 05:
I... If the court actually... No, no, just come on.

[00:26:34] Speaker 05:
Take it... If the court actually resolves... No, don't change my hypo.

[00:26:37] Speaker 05:
I am not.

[00:26:38] Speaker 05:
I'm trying to understand your argument.

[00:26:40] Speaker 05:
One sentence, the sentence I just gave you, that's the sentence they started the analysis with and then everything else is the same.

[00:26:48] Speaker 05:
You lose now, right?

[00:26:51] Speaker 04:
In that circumstance, had the court addressed its jurisdiction expressively as you said, yes, that would be a problem.

[00:26:56] Speaker 04:
But it did not.

[00:26:58] Speaker 04:
I would also suggest, Your Honors, that if you believe that the court did resolve its jurisdiction that were bound by the decision, despite the errors in that decision that Judge Wilkins pointed out as dissent, the thing to do here, if you must, is suggest en banc review.

[00:27:21] Speaker 04:
You could say that we believe this decision is incorrect.

[00:27:26] Speaker 05:
Was an on-boc review suggested following the 15 decision?

[00:27:31] Speaker 04:
I mean, it's the same merits question.

[00:27:33] Speaker 04:
Well, no, but it was really not clearly presented there because the opinion is silent.

[00:27:37] Speaker 05:
What, any request for on-boc review wasn't clearly presented?

[00:27:40] Speaker 05:
Well, first of all.

[00:27:42] Speaker 05:
See, the problem, you've got to understand as an institutional matter what we face all the time.

[00:27:48] Speaker 05:
We're bound by the law of the circuit.

[00:27:50] Speaker 05:
We're bound by what a prior panel says.

[00:27:53] Speaker 05:
We have ways to deal with that.

[00:27:56] Speaker 05:
And there are a lot of times we look at a prior opinion and we may say, you know, I don't quite see it that way.

[00:28:03] Speaker 05:
But if it's the law of the circuit, it's the law of the circuit.

[00:28:05] Speaker 04:
Well, again, had the court expressly addressed its jurisdiction.

[00:28:08] Speaker 05:
That's what I'm trying to understand.

[00:28:10] Speaker 05:
That's your sole argument.

[00:28:11] Speaker 04:
And I don't think, yeah, of course, that is our argument.

[00:28:13] Speaker 04:
The court did not address its jurisdiction.

[00:28:15] Speaker 04:
There is no mention of jurisdiction in this opinion.

[00:28:18] Speaker 04:
There is no mention of Clean Air Act Section 307B1.

[00:28:22] Speaker 04:
There is no mention of late challenges to prior rules.

[00:28:26] Speaker 04:
There is none of that there.

[00:28:28] Speaker 04:
There is no attempt to grapple with the very absolute language

[00:28:34] Speaker 04:
of 82.174D and the express bar that imposes on any user of a substance once it's been moved to the unacceptable list.

[00:28:46] Speaker 04:
There's none of that and you would expect to see that in the decision, particularly where the issue was, as your honor notes, raised in briefs and argued.

[00:28:56] Speaker 04:
Again,

[00:28:57] Speaker 04:
The very minimal statements the court made are all in the context of its Chevron step one argument.

[00:29:03] Speaker 04:
Whereas the dissent points out expertly, it's not relevant.

[00:29:09] Speaker 04:
It's not pertinent.

[00:29:11] Speaker 04:
It's dictum.

[00:29:12] Speaker 04:
It is rhetorical flourish designed to support the court's conclusion the statute is absolutely clear.

[00:29:20] Speaker 04:
And that is really the essence of this thing.

[00:29:23] Speaker 04:
I don't believe that in this circumstance, well, the case law says if the court didn't address jurisdiction, it's not precedential.

[00:29:31] Speaker 04:
Collateral estoppel doesn't apply in that instance.

[00:29:33] Speaker 04:
Story of decisis doesn't apply in that instance.

[00:29:35] Speaker 04:
And I think it behooves the court not to extend the mistakes of a prior decision where there is an opportunity to rectify those.

[00:29:50] Speaker 04:
there was no resolution of the jurisdictional issue.

[00:29:52] Speaker 04:
The court may and should examine the jurisdictional issue anew and determine that these petitions are not to the 2015 rule and the 2016 rule, I'm sorry, in this case, which merely moves substances from one list to another and does nothing more than that.

[00:30:09] Speaker 04:
And the 1994 rule, which is the thing that spells out the legal consequence that the petitioners are actually challenging.

[00:30:18] Speaker 04:
The court should address this, should dismiss the decision.

[00:30:21] Speaker 04:
If it feels it's bound by the prior decision, I would urge the court to state its disagreements with that decision and suggest that the court review the Sondland to correct that error.

[00:30:32] Speaker 03:
All right.

[00:30:33] Speaker 03:
Thank you.

[00:30:33] Speaker 04:
Thank you, Your Honor.

[00:30:36] Speaker 03:
Council for Petitioners.

[00:30:46] Speaker 02:
Boeing's representation to EPA is reflected in footnote six on page 18 of EPA's brief.

[00:30:54] Speaker 02:
On collateral estoppel, the only argument my friend Mr. Lorenzen made that's addressed to our collateral estoppel argument

[00:31:03] Speaker 02:
is that jurisdiction wasn't addressed in Mexican I because it wasn't discussed, and he says that because of the absence of discussion, there can't be either stare decisis or collateral effect.

[00:31:18] Speaker 02:
Whatever one may think about stare decisis, that's just not right as far as collateral estoppel is concerned.

[00:31:25] Speaker 02:
It doesn't have to be discussed.

[00:31:28] Speaker 02:
There's a trilogy of decisions from this court decided in 1990s that we discuss on pages nine to 10 of our reply brief that make that abundantly clear.

[00:31:38] Speaker 02:
Implicit holdings are more than sufficient for collateral stopple purposes.

[00:31:44] Speaker 02:
Again, whatever you might think about star decisis.

[00:31:48] Speaker 02:
And these decisions say that the fact that the court was not explicit in its finding is irrelevant to the preclusive effect of a decision.

[00:31:57] Speaker 02:
Issue of preclusion is applicable if resolution of an issue is necessary to the judgment, even when the opinion is silent on that issue.

[00:32:04] Speaker 02:
The judgment bars relitigation of an issue necessary to the judgment, even in the absence of any opinion.

[00:32:11] Speaker 02:
And of course, there was not only an opinion here, there were two opinions totaling 44

[00:32:18] Speaker 02:
So quite apart from what we think is just sort of a common sense proposition that it is exceedingly hard to believe that the court had no view one way or the other on whether it had jurisdiction in issuing 44 pages of opinions.

[00:32:35] Speaker 02:
The court hadn't issued any opinion because the issue was raised and contested and then relief on the merits was granted.

[00:32:43] Speaker 02:
Its decision would have collateral estoppel effect.

[00:32:47] Speaker 02:
If the court has no further questions, we would ask the court to grant petitioners the same relief that was granted in Mexican 1.