finally in seattle because it does not border any person to do or refrain from doing anything and does not alter anyone's legal rights and obligations the jurisdictional determination or j d expresses the corps opinion about whether a particular tract contains water is protected by the clean water act that stated opinion may affect the recipients assessment of the options available to it but it does not affect the actual legal status of those options this court's precedents make clear that the practical effects on which respondents rely on not a sufficient ground for treating an agency communication as final agency action now the respondents primarily emphasize the practical impact that the course jurisdictional determination would have upon themselves the recipients and the intended audience and they say the jurisdictional determination indicating that the core believes there are waters of the united states on the property will force them to choose among three unattractive options one would be seeking a permit which could be an expensive process and wouldn't be inviting means certain to succeed the second would be discharging pollutants discharging feel onto the property and taking their chances in the future and for action and the third would be for playing it safe or going development entirely and the problem with respondents argument is that that choice would have existed before the jurisdictional determination was issued it would have existed if the by the corps a war by e p a is binding on the federal government in future litigation would that be reviewable i think if the if the statute said that we would have a very different case because in that case we would have something much closer to bennett versus spear in bennett versus spear the court though the court was dealing with a biological opinion issued by one federal agency the fish and wildlife service to another federal agency the bureau of reclamation and included an incidental take statement and the terms and conditions of the incident will take statement affected the legal options that were available to the bureau of reclamation would be a different case but are you able to say whether that would be reviewable under the a p i yes i think if the if the course jurisdictional determination were legally binding upon the e p a if it were closed the possibility of an enforcement of an e p a enforcement action that was inconsistent with the terms of  jurisdictional determination just we think that the j d would be judicially reviewable but i think it's important to point out how far removed that is from the actual statute before us that wells will it not me just ask about how far removed it is  there is no such statute that certainly is true but there is a memorandum of understanding between the army and the e p a and it says quote case specific determinations and i think that includes determinations made pursuant to the terms of this memorandum of understanding will be binding on the government and represent the government's position and any subsequent federal action or litigation regarding the case so is your would your argument be that because this is in a memorandum of understanding as opposed to a statute or regulation the situation is different and that is insufficient to make the sure it's jurisdictional determination reviewable that would be one argument but the other argument and i think we've made this point in the reply brief that particular memorandum of understanding was dealing with what are referred to as special case determinations there are situations occasionally arise where the agency is perceived at the outset that there could be dicey questions there could be questions of coverage on which the court and e p a might disagree and since night no i don't i'm sorry to stop you right there but i don't think that's right i'm looking at that memorandum as well and it says in section two i'm sorry for see to it describes non special cases it says for those projects not involving a special case the d e you know with the district engineer the army corps not e p a the d e c shall make final determinations and communicate those determinations without a requirement for prior consultation with the e p a so while it talks about the division of authority between special cases and the mine run cases it certainly says something about non special that's what section two is titled non special cases but what we understand the language about the ultimate determination being binding on the government in subsequent litigation as referring to a special case determinations well but i don't see how you can do that about looking at you know six a it says all final determinations must be in writing and signed by either the da either the army co person or the regional administrator straight or the e p a person and it says that those will be binding on the government and represent the government's position in any subsequent federal or federal action or litigation concerning that final determination one yeah the one you cite in footnote three of the reply brief where you say that it does not address mind run core gestational determinations i think we would still think of the the general the final determinations as referring to a special case determinations but even if the memorandum of undergone just a pause there how can you do that when it says all final determinations signed either by the d the district engineer who does not have eg which is referring to which is a member what a way that is referring specifically to special case determination but i in the it yes this am away decides what's a special case and what's not and it tells you what happens when it's not so i just don't see how you can say that talks only about special cases i think even if the memorandum is read read that way if the memorandum is read that way i don't think it reflects current government policy it doesn't reflect the current understanding of the and i don't want to that's fine to give me an example of a case where the government has gone after someone absent change circumstances who's had a negative chadian hand any situation paris crave memorandum postmen miranda i don't care where you actually taken the army corp's the terminations and said we're going to go after this person anyway i don't know that it's ever happened and i certainly don't want to suggest back which a reserve in your power is enough even though by this memo and practice you've never done it you think that that's not within bennett's second  prong in the same way that in franklin versus massachusetts the practice of the president had always been to transmit the figures and do the apportionment in accordance with the figures that were prepared by the secretary of commerce but the court what mattered was there were there was no legal legally binding obligation on the president to do that i would also say that independent of the possibility of an e p a enforcement action there is a more realistic possibility of a private citizen ship suit the fact that the corps concludes that jurisdictional waters are not present wouldn't preclude a citizen suit from being filed challenging that promise of the  think whether it's final with respect to the course the determination not with respect to whether somebody else might be able to bring suit and and i think when justice sotomayor it's suggesting is that in practice and what i was suggesting in law this is final with respect to the core and that would be the first prong of bennett that is that even with respect to the core it is still subject to reexamination if somebody presents new information if the if in the course of a permit in process the applicant asked the court to reconsider its pilot jurisdictional determination the corps is not going to reconsider it sue aspired to during the five year period while it remains effect what seems to me what your argu that there are exceptions to what is otherwise a safe harbor it's not intended to be i mean first of all the jurisdictional determination that we're talking about here the one that's actually being challenged was one that concluded that jurisdictional waters were present and it's clear that that sort of jurisdictional determination has no binding effect on anyone the landowner is still legally free to disagree and to discharge well great and great practical risk i mean that the court comes in and says these are jurisdictional waters and you say we have when you can go ahead you can still dump and do everything you want and take your chances that will be a different ruling later on down the road and the other that i grieve that it is a legally available alternative but i agree practically difficult when the other alternative that up the property owner has is to seek a permit to discharge fill lawfully and the permitting process that really is the mechanism that congress designed to allow different context for example that was exactly the argument that standard oil made in f t c versus standard oil the f t c had commenced an administrative proceeding in which standard oil was filed charged with violating the law and there was believe the phrase was challenge the initiation of the proceedings because it will put me to great expense to defend against them it will impugn my reputation that i'm as it does but i joined bennett and the reason i joined it is it says in the second  prong or from which legal consequences flow so i would assume that nothing in bennett or i would have dissented is intended to overrule what i think is the great case on the matter which is abbott labs policy disharmony nation is right even though it would not issue a television license that's what the policy said even though no specific application was before the court so it wouldn't take effect until later in the same thing was true precisely of the order in abbott labs itself it was a statement of interpretating what the commission would do and nothing was going to happen nothing happen unless later or somebody decided to violate it much like this and even if they violated it nothing would happen unless the commission decided to prosecute so it justice ginsburg said was once this is in effect ok now perhaps the person who is subject to it has to take certain steps because of the law one spend one hundred fifty thousand dollars to try to get an exception and fail or to do nothing violate it and possibly go to prison don't sound like important legal consequences that flow from an order that in respect to the agency is fine for it has nothing left to do about that interpretation and b is perfectly suited for would be when the courts so we have harm flowing from a change in legal relations we have an agency that has nothing left to do on this particular matter and we have a court that is perfectly suited to review i would say it flows from that on each instance where the trade name of the drug appeared including on the on the labeling the generic name of the drug you had to appear at it as well and the regulation as brewers typically do was phrased as and or as a directive it said manufacturers shall do this it was a legally legal command in standard oil the court don't with said in various context we have held that regulations or immediately  agency action although the court engages in a separate rightness discussion the second thing i would say about bennett is the bennett court i think was quite careful not to rest its to say sion on the practical impact that the order would have on the recipient it rested its decision on the fact that the biological opinion constrained the legal obligation options available to the bureau of reclamation because only by complying with the s s terms and conditions could the bureau of reclamation get the immunity from endangered species act liability that it wanted but the third thing i would say and to to return to my prior point about f t c vs standard oil it happens a lot in the law that we are confronted with a situation like this where a particular government decision is made be it an agency order a district court order that denies a motion to dismiss for lack of subject matter jurisdiction or or they were to collect state a claim on the merits and the losing party the person who disagrees with the order says i should be able to get immediate review of this because if i don't get immediate review then even if i'm vindicated at the end of the day i will be put to substantial burden and expense in the meantime ystem sooner may i ask you please don't k i asking this question and please don't resist it because i know your arguments resisting it but assuming we disagree with you that the should be appeal what's the now swing to right this that the government would like i guess if the if the court ruled against us on the ground that he understood that the e p a and the court to have entered into any binding agreement such that the e p a would be foreclosed from taking action based on its disagreement with the course jurisdictional determination i think if that were the gravel going to be opinion it would be one that if the agencies wanted to fix it they usually could simply by issuing a new in a way to clarify their view of the j d s effect on the same lines can i ask more generally in a one of the reasons i find this case very difficult is because all over the federal government there are compliance officers of various kinds whose function is to give advice to people and often that advice comes with very specific recommend recommendations it says we were not taken for cement action if we do not consider it a violation of law on the following facts i guess what i want to know is your view of how this program compares to various other kinds of programs like this whether it's there whether it's tax opinion letters or f c c opinion matters or f c c or  whatever how this program compares to those and where you could draw a sensible alliance because mostly we want government agencies to do these things we think that this helps people to actually know what the government thinks about particular factual situations so how do we draw lines in this area in your view well i mean it i guess part of the difficulty i have with your question is i should say i think if you were drawing lines the jurisdictional determination at issue here would be fairly far removed from anything that ought to be judicially reviewable because in many of the instances the informal advice that agencies are giving it is specifically advice about the legality the perceived legality or illegality of specific contemplated private conduct somebody may come to the agency and say i'm thinking about doing x would that be legal or illegal and the agency might say we is unique in both being quite vague in its reach arguably unconstitutionally big and certainly harsh in the civil and criminal sanctions that puts into practice and what's the closest analogous statute that gives the effect of party so little guidance at the front end well i think with respect to the vast majority of sites in this country it's readily apparent whether the clean water act applies that is and this point is somewhat removed from the actual facts of this case but it happens all the time that it construction sites around the country industrial produce will dig up a lot of dirt and deposit it somewhere else and they're doing something that would be illegal if it occurred in waters of the united states but nobody thinks there's a problem because in the vast bulk of its application in the vast bulk of locations there really isn't a quandary and if you imagine a statute that said before you can do anything like that you have to come to the corps and get advance assurance that these are not waters of the united states it would be exponentially more burdensome i take your point that there are certainly a significant range of tracks where the application of the act is authentically ambiguous but the thing i would say about that is congress has designed the permitting process there are other statutes in which regulated parties have no statutory mechanism for getting an advance ruling as to the legality of their conduct they have to either do it and take their chances or forgo it or perhaps seek informal advice from the agency let's say in a case where there hasn't been a stand alone jurisdictional determination and the landowner applies for a permit the first part of the permian process is as i understand it would be a jurisdictional determination is that right that's correct ok and at the end of that can the landowner get judicial review with the determination is that it it is subject to the clean water act or does the landowner have to go forward in your view with the entire process the all the rest of the permanent process before there's a possibility of an administrative appeal and judicial review i think it would still have to go through the rest of the permitting process and part of the point for that is it may be that during the rest of the permitting process the landowner i have no prospect prospect except perhaps of it in the ministry of appeal because the landowner always has the legal option of discharging without a permit if it publicly also he goes to jail i mean you're putting your brief risks in your brief and i think that the point raised of course you it's a good idea to give people advice abbott labs takes care of that one of the three important features of abbott labs is you look at it from the point of view of the agency and you say how formulas it what was there left to be done and in this case once they make a determination it's called the agency's official view it states say that it remains in effect for five years unless conditions change and you are in your briefs say that the issuance of an approved jurisdictional determination mark the culmination of the distinct process by which the corporal informs the landowner whether the corps believes that covered waters are present so that doesn't sound like someone giving informal advice and there's an appeals process if it sounds like a formal system of answering a question which question is are these lands wetlands federal or not now if you had some kind of informal advice fine you come to a different result but i just listed the things here that the basis on the practical basis on which respondent wants to get into court that is if this had been a much less formal document but it still manifested the course view that jurisdictional waters were present i think respondents would say they would be under exactly the same pressure either to go isn't just that pressure it's both and the concern on the other side beyond the e p a is this is a vast federal government and this vast federal government can operate can many formal determinations on aspects of the statute and if people are people are required to follow those without court review on penalty of going to jail if they don't just follow it or paying hundreds of thousands of dollars what happens to judicial review i think it's also a public policy question i agree that it's a public policy question but as i was saying about standard oil and the same principle applies to our i recall systems general resistance to interlock a tory appeals within the judicial system that is it happens all the time that a motion to dismiss is tonight the party who thinks that the complaint ought to be dismissed could say to an appellate court i will have to pay hundreds of thousands of dollars litigating this case to which conclusion before i can achieve the administrative appeal was provided i think it was intended as a service to the landowners that the corps wanted to give the best advice the only other thing i would say about it was there anything in it for the e p a or the corps i mean we and i understand has benefits to the enforcement agency in the sense that if landowners receive what the corps believes to be accurate information about their property the likelihood of their complying will be greater as justice kennedy a belief was pointing out the party to appeal to delay the resolution of the case in this situation i don't see that inducement as existing many i doubt very much that landowners are who want to use their property for a particular purpose i'm going to appeal just for the just to delay the government's adjudication of an issue that's going to either commit them or not permit them to go forward i would agree there is west danger of manipulative appeals there is still a real danger of duplicate of appeals because you could have a appeal on the jurisdictional question the court says the question is sectional determination was not arbitrary and capricious now you go through the today in addition to the emma way the fact that this is a site specific adjudications suggests that this isn't buying that this is a binding determination fact that's the very purpose of acacia also as has already been mentioned it represents itself it as being the official view of the agency the final agency action of the agency and will be relied on for five years even during the permit process that will not be revisited all of those things suggested this is a finding adjudication  harper can i ask and i was just looking through some other agencies rules and practices and i'll just give you a couple of examples the f c c put out rules just this past year and it says  with respect to some particular matters the f c c rules say the bureau will not bring an enforcement action against a requesting party and request and party meaning somebody who requested an opinion with respect to any action taken in good faith reliance upon an advisory opinion if all of the relevant facts were fully completely and accurately presented to the bureau and there's another and that i just came across it's in just a standard s e c securities and exchange commission opinion letter and it says be just on the facts presented the division will not recommend enforcement action to the commission so i guess my question is this appears to happen all over the place around the federal government people setting up offices whose specific purpose is to say come to us tell us your problem and we are going to give you a view and not just of you we're going to essentially commit that if you have told us the truth here is your answer and you can take it to the bank and i guess i want to know what's different about this than any of the other cases in which the federal government does that for good reason because people want to know these things what you're describing that your honor is what is written will reap would be referred to in this case as a preliminary jurisdictional determination the regulatory process he has built into it the by me and can't be appealed well you get these or this is very strong language that are in these letters we will not recommend action we we will not bring an enforcement action so you know just like as you say actually decided in this particular case the process is so formalized and and purports to be final and for ports to be buying we that it just  that just quite distinguishable from the situation that you were describing me ask you about that because that's certainly this this process does last a long time and it's even mr stewar i think would say this is a more formal process than many that are that exist around the federal government but i guess i'm wondering about the incentives of the kind of distinction that you would make because it would suggest you know that agencies should not should draw back should not give a fully informed view should not you know the fact finding that the board that the that the court does here  you know should should just make their processes less formal and in in making their processes less formal also less accurate and less helpful and i guess i wonder who that benefits in the end well i think that the agency has more to lose then the landowner has to gain by refraining from issuing these kind of formal adjudications they indicate that they permits and of those only eight have ever been appealed administrative lee so there's really no incentive for the for the government here to draw back on this formal a process because you know almost all cases the landowner are simply going to defer to the agency on jurisdiction and that that would be my response to you and i guess i don't quite understand that because it seems as though they could make it less formal and they could provide less assurance and and still there would be very few people who would want to run the gauntlet and so you wouldn't gain anything or you would do was to lose something and what you lose is accurate reliable information provided to people about whether in fact these waters are fall within the clean water and whether that's the problem because until the act and it can only be done through expert analysis you would never get the kind of detailed reliable information that would define the scope of jurisdiction if you didn't have such a formal process which would never occur in the type of generalized ruling that you suggested like through the preliminary g j t the preliminary j d says we think you may have  states on your property the approved jurisdictional date j t says just the opposite we've made a definitive determination you can rely on that you're obligated to get a permit and you have a right the regulatory guideline is to ask and under the regulatory guideline the agency is required to respond that language says the corps will that that's the whole question at issue your honor is whether we can get just records or just sure if you were in the district court and the district court made a jurisdictional determin what i think i think if i understand the question you're going to district court you say we're from alaska and here we are in florida and we don't belong here there's no jurisdiction in the court says you're wrong that means you have to stay there you have to go through the whole proceeding it's going to cost you one million dollars it's going to take a long time but you don't get independent review of  question so i think the question is if i may say it is is is why doesn't that apply here too because this is just like one part of the whole thing in what my but i'm going to the question i just said you know under under our stand under abbott labs this court made made the determination that if one is in this catch twenty two situation this no win situation where even kno do you think there might be an argument that it is tolerable to wait until the end of the case when a neutral article three judge makes an adverse judicial and adverse jurisdictional determination but perhaps less appealing to wait till the end of the adjudication when the jurisdictional determination is made by an enforcement agency well but an adjudication is already been made there's no further to be made unless you're talking about requiring a permit prior to judicial review and that's what we find objectionable your honor it's not an adequate remedy in court a more general way to ask this question and there's no doubt that some people face themselves and we'll predicaments when they're looking at that when they're trying to figure out what to do under the clean water act but of course you know that's true with respect to many regulatory statutes and i think what mr stewart's point was was that the predicament is the same regardless of the j d process if the j d process didn't exist your client would be facing the exact same predicament and then did the j d is the j d processes reason for being is that it's supposed to help people in dealing with this predicament because it's supposed to provide them with information that they wouldn't otherwise have exactly well that seems to be a good reason for mr still work to prevail in this case is the predicament is the predicament and it's a predicament that comes from the clean water act the j j process isn't the only thing that's supposed to do is to give you more information so that you can make the choices that the statute puts to you it does more than that under under bennett your honor the second prong finality is satisfied if any of three requirements are met there we want to write is is determine who or an obligation is determined or legal consequences flow by virtue of the judicature of determination in this case an obligation has been established that the heart of that harks cannot use one hundred fifty acres of their property without being obliged to get a permit they also that's the question is whether there's any obligation or whether there's simply information about what will happen given different courses of action the clean water act itself doesn't say anything about this particular property and the clean water act doesn't cover all waters and the only way to find out if there are jurisdictional waters which will trigger the requirement for a permit is to go through this slope or is site specific  seems right but it's also right people go to the treasury department for tax letters and it's also right people go to the f c c for advice about what they can and cannot do with respect to securities and it's also i  and regulation and practice constitute a binding conclusion or the premise of the question is that the army corps of engineers is doing is just out of the goodness of its heart that this is a lot of work for them but they just want to be nice to landowners and that's why they've set up this this process and maybe that's correct although i understood what you were saying earlier to suggest that that's not quite how you see the process that they do this for their own purposes because they it expands their own foresman power because landowners who have a question about the status of their land have a strong incentive to ask for jurisdictional determination and if so that it works the core to the fact that this is a property that might be subject to their jurisdiction and if take issue a negative hundred forty six it's called the administrative procedures that it tries to divide such things with that word final as wrong making by the agency for accomplishing roughly the same result by never having a rule but just telling everybody informally what the agency will do in such circumstances it might mean that the formal use other things being equal find no agency action in respect to that matter it might be that the latter is not so i think what you're telling me is what i should do next is go read those federal rules and regulations and see is this more like informal advice where is it more like formal rulemaking and you have the four ladder and they have the former like i guess i don't know and i go in make up my mind i guess that's my job in this instance also to help make up your mind we would refer you to frozen foods which you've already yeah i mean a f foods store and abbott labs and then it too are examples of what falls on the formal final side of the line right a few other things will be on the other side and in fact a frozen foods is virtually indistinguishable from this case frozen fruit was essentially a jurisdictional determination case well mr hopper can i ask do you think that this would count as a formal adjudication under the a but it then received chevron deference oh i'm sorry i will not not in that sense no yet not and not in that sense no i wouldn't think so in that sense i wouldn't think it's a formal education and i wouldn't think it would receive chevron deference and you know there's a very fine opinion by judge sutton on this question and he basically says the kinds of things that are not final the kinds of advisory type rulings that are not final are the ones where there is no given that that's the proper line to draw those that's when you know that there's a kind of formality to it that should count with respect to the to the question a fine on this well the we have met in every way of the finality standards of the bennett second prong we have identified right that has been determined not a geisha which has been determined we've talked about legal consequences  court is looking at and the agency at civil penalties the clean water act requires that the court look at the good faith efforts and and by extension the bad  significant i'm sorry please yes yes isn't that true in every case of an opinion letter whether it's from the government or for actually from a private party that you know there's always cases in which people say you had an opinion letter it said x you did y or conversely i had an opinion letter it said x i did x i mean that happens all over the place and that occasion with respect to every single compliance piece of compliance advice that the government gives yes with the with the one exception that the wait to the court is going to give to those types of opinions and suggestions is much different than what the court will give in a final determination as to jurisdiction after having gone through a formal appeals process so the weight is quite different let me also make a comparison between  this and sakit when this court siddur whether double penalties would apply in that case might recall the turning or argument mr stewart said that with respect to double penalties that is know there will be thirty seven thousand five hundred dollars a day assessed because of the violation of the statute and then thirty seven thousand five hundred dollars a day because of a violation of the compliance order he said that that really of the war was entirely theoretical didn't even know if it even would even fly here we don't have a theoretical risk we have an actual  risk the clean water act says in knowing violation shall result in a civil fine of no less arson a criminal fine of no less than five thousand dollars and don't more than fifty thousand dollars a day and will increase the prison time for one to three years so even though you're right a simple letter may put one on notice it certainly doesn't have the same weight as a final binding determination the main problems we have with the requirement that of going through a permit process before one can seek judicial review under the a p a are fulfilled first of all the permit process adds nothing to the jurisdictional question it doesn't add any facts which are relevant and it doesn't clarify the law it's it simply an idle act which the law pours secondly it puts the the timing of the judicial review entirely in the hands of the agency landowner a right to ever have judicial review that was important to this court in in sakit when this court was looking at whether it for some an action if you could instigate enforcement action whether that would be follow so the fact that there's no control in the landowner to when the judicial review would occur we think is violence of of the a p a the a p a suggest immediate you're just review is required that's falls under the presumption of review building that's that's the intent of congress once finality has been established it seems to me that the court should be looking at ways to facilitate exposed to the very same things under the statute right so because the agency has provided something that leads to some benefit to the public it's or it becomes subject to a determination should never have been issued that and that that the waters on this particular property are not waters of the united states and a negative jurisdictional determination should have been issued i thought your answer might focus on the fact that this is of great benefit to the agency because by issuing the determinations they are able to exercise extraordinary leverage without going through the formal in forstmann process so it does give them it is a way for them to exercise their authority without effective judicial review and that that's sixty significant enforcement tool for them so they might be unwilling to give it up if they had the option i think there's no question they're not give up they have they have nothing to lose it's the in most talk aces the the recipient of the jurisdiction of determination to if they could establish through judicial review whether there are jurisdiction waters on the site so i agree with you i think that that's one of the problems we also think one of the difficulties with going through the potential due process problem i think your raises another problem of practicality i do it's a term in how much is too much money for some people given their financial situation three thousand dollars is too much and for others i  don't know your clients financial wherewithal but ten thousand would be reasonable so when should we decide how much is too much well i don't think it's a question that needs to be answered generally because it can be answered stress if equally in this case in this particular case the landowner has been asked to provide over one hundred thousand dollars in additional studies you might recall that the the applicant actually started the permit process and was willing to go through the permit process until it became unreasonable and to cost prohibitive to proceed and that's when the asked for the charges jurisdictional determination thank you counsel mr stewart two minutes you mr chief justice first with respect to the cost of the permitting process there's no basis for assuming that the permit process is systematically unavailable as mr hopper was referring to the core statistics indicate that a little over fifty thousand general permit authorizations and a little over three thousand individual permits are granted each year that the process may be expensive in individual cases but it is a process that is regularly invoked and regularly invoked successfully and in many instances if the corps and the landowner come to an agreement the corps offers to permit the activity on terms and conditions that the landowner regards as acceptable that may obviate the need for a court ever to resolve the question whether be necessary to resolve after all with respect to the analogy to district court litigation i think in standard oil this court has already taken the step of saying the same principle applies to administrative adjudication my point in analogizing to district court litigation is simply that this is not a cork of administrative law this is a fundamental precept of our legal system that on the whole we are more worried about piecemeal litigation than about deferred litigation finally formality is not the key in franklin and dalton the agency process that issue were intentionally formal intensely structured and they were designed to have an effect on the president's decision making they were held not to be final agency action because they were not legally binding on the pretty president and the same thing is true here with respect to the binding effect of the jurisdictional determination on the recipient thank you thank you counsel the case is submitted