nine alvarez versus office of personnel management on the argument list will hear first argument in the film number zero six twelve eleven citizen electronics versus good morning welcome please proce question it is properly applied to these machines for this and that's not the question the question is whether you can see that in front of the trial judge that the issue regarding us to the place where this was discussed and you say you pressed not d c circuit law but federal circuit i believe in  direct one to the proper resolution of that question and we have cases in which we said the issue of collateral estoppel issue preclusion is a matter of regional circuit law and you're saying that you really think we should walk away from those cases i take a look at it in this particular instance let's assume it was in this particular instance you have a situation in which we are determining whether there is created that something rule itself and it seems to me said grace has a very powerful point i didn't see any discussion in arrowhead of seventh circuit law being contrary there does seem to be no our law your view that implicitly arrowhead created a rule that federal circuit law would be different and would trump each regional circuits law i think federal circuit law should apply in this situation because that would be good policy in your opinion or because arrowhead or implicitly so help i i do accept this characterization of your position that you're saying to the extent not implicitly already so held in j f or arrowhead this panel in this case should hold that federal circuit law services might it depend on whether the new facts strengthens or weakens the threat  i think in a in a particular case  should perhaps depend on whether it adds to or weakens the inference of a threat i think you should consider the totality of circumstances either way now why isn't the d c circuit rule at least one interpretation of a better policy than the contrary rule since it would allow for litigation in the first case of everything known as of the decision time in that case and thereby it ought to decrease the number of subsequent filings that might be required so there's a couple reasons i wasn't basically what occurred of that case is that sit i'm talking about the time period between the day of filing and the day of decision in case number one the first d j complaint and i'm saying why isn't it better policy as seems to be the c circuit law to require all known facts relating to imminent threat to be adjudicated in that first case for the reason that it ought to decrease the number or likelihood of doesn't cut the other way i don't understand how an intervening fact those arising between filing and dismissal if litigated in the first case doesn't promote to digital efficiency because obviously anything that is litigated in case number one doesn't have to be litigated in case number two or three or four or whatever number of d j complaints ultimately get filed another court or whatever i mean if you discus if you could solve the problem by amending just in terms of judicial kind of hands as the chief judge just alluded to that seems to be the preferable course now the question would be then what exactly is it that prevents a party  position from amending as the proper way to get these later developed facts before the district court in a proper process or a couple could swallow in the decision in the first  and it was possible to do so if there is a requirement out there and there's the possibility of fulfilling it why should you be excused by not fulfilling it simply because later the judge said whatever in h prevented from amending right that's correct that there was no laws and don't you have to agree that there was a good reason to i'm in in the form of the d c circuit sixty in cases but the federal circuit law pointing the other way should trump and therefore the federal circuit will say to me now you seem to be saying well actually you're safe by the d c circuit law i think if you properly apply even the d c circuit  threat of a infringement action being filed against you if the issues the same the evidence may be slightly different but the issue seems precisely the same to me then how does the different well the determination that the that the federal circuit law is a you don't amend because anything after the data filing is irrelevant you must file and you're entitled to file certainly the law she purported to apply was totally different from that at least i think it is so if she applied incorrect more how can it be that she would be  matter of discretion i'm going to throw the suit out anyway because there is no jurisdiction can i take you back to the question that we began with in our discussion with your opposing counsel on that question later there was an acknowledgement as the trial court characterized it of the applicability of district of columbia circuit law there's a footnote i guess it's in  trial judge relying do you think on that footnote for a characterization of this as a and acknowledged issue between the parties i know you you argue to that d c circuit was applicable to this with this footnote be the source of her i don't care what it stands for doesn't stand for i'm trying to figure out whether it's of citizens waived or forfeited the right to claim help from here strongest ground of a program i think our strongest mounir permits here is that this is an entirely procedural rule and they are or d c circuit law should apply it is clear what what makes you win under their circuits laws simming they're quite different to the very different different aspects that make us human under each separate law because as you mentioned there they're quite different under the d on in the jurisdictional context i file a complaint on day one on day two something happens that substantially strengthens my jurisdictional argument my course of action then is to file an amended complaint at that point i take it in order to bring that second fact before the district court and absent an amended complaint that second fact is not before the district court that's part one and you agree with that so far circuit case that followed magnus in which the court says that the facts the only facts arising after the complaint was dismissed and then they had or at least after the final opportunity to present facts to the court can defeat the bar of the preclusion in other words that that it can't be one of these last minute of the facts that arises or at least the party ought to needs to have a was actually declining steadily over the whole time span of these two suits and therefore the imminent see the was getting even weaker and therefore the second complaint was all barred from related getting the matters that came up in the in the first section how would you characterize what use the trial the judge in the second case can make of those earlier facts and by that i  think i mean the without getting too far afield here it's a suppose that some important fact occurs in the period after the first dismissal but that fact  by itself might not be sufficient but in conjunction with the earlier facts which were not diverted to in the first complaint would create jurisdiction is it possible for letter was followed by a long period as i recall of non violent and so that's why i was suggesting that the threat if any was weakening over time because every additional month there wasn't a filing testify about new facts from last week on the ground not in the records where they have no chance to respond because i'm sure they're related to the issues that you question about it is always be relevant when you appeal under advi