understand that that's a big etc we recognize that courts always want to maintain settlements where possible in this instance a settlement which they have been designed to balance benefit to be gained from being in the ninth circuit it has no better insight into this case the fact that it addressed a portion of the issues below really has no bearing on the challenge to address the issues that are raised by that i would suggest that the judge's order the consent decree itself is not one of those issues except to the extent that it constitutes a fine a court correct well first of all that was a decision and part of the decision that the f a a made in the first instance and heading into the settlement agreement and including  approval of a consent order but that did not make it any less a final border and this court domestic securities is a case that comes to mind where the earth the final border that this court to act on the condition but this court was very clear that the reason that subsequent condition i think the order in the case you're talking about had been completely approved the only question was whether it would only thing left was implementation here it's all dependent on on the health wealth but it it's all depended on that yes it's a condition and the judge entered an order which you know sco to the court and have an agreement i propose that it be entered as a judgment and the court enters it as a judgment what's left of the agreement divorced from the judgment the agreement is approved by the judgment but the agreement contains all of the terms it relieve your honor knows what it does i mean it release this and does that those are all i understand but the judgment does all of those things as well to me why isn't the right way of thinking about it the agreement is either merged into or super ded by the final judgment or the agreement stands with a condition that's been that's that has occurred and the agreement which has all of the terms remains the water walk right those are the possibilities why is your smore plausible to the extent that look at the parties ever have any dispute about this they're going to be going to the court and asking for an foresman of the judgement they're not going to be bringing some free floating independent contractor action on the agreement that's correct but the issue here when you look to the issue here is the authority of the combination of the two with the government doesn't really tell us what it is but it certainly can't be the judge's order the consent decree standing alone because there's nothing there so if it's some combination of the two it's still the final word on the shortlist of what you just said what do you mean nothing there's nothing any there is nothing of substance in the consent decree didn't a consent decree approve the settlement and maybe seven did for some yes it did so why would you say it has nothing of substance what if what i'm saying is that if the settlement if the consent decree itself is the only thing ability to challenge the authority of the f a a or any agency of the f a a and this is to to enter into that arrangement whether it is contingent on or on a judgment whatever don't recall is is exactly that that a stranger to it consent decree can challenge it in a separate action in that case it wasn't these arguments surplus property act and so on well in the california district court that's an interesting question because the ninth circuit does seem to say that you can raise legal issues but that would be very risky if for example judge if we were able to do to overcome opposition and intervene which we were not able to do and and judge walter looked at it what happens of judge walter decides that maybe he doesn't have jurisdiction that's a problem for us so we would have had we could have you well we could have appealed that but we would have had to file for six one one zero in any event to protect ourselves because the the sixty clock is ticking away while we're while we're engaged in all of this so which brings me back to my question why did you file your four six one one nights or i'll be very blunt about that because we didn't have to we didn't we are entitled to suggest having gotten this far and i see my time is up but having gotten this far there's no benefit with this settlement agreement slash consent decree i mean that's how it's the only thing that makes of the consent decree is a line at the bottom that says in the civil war where district judge signs off on and it's a rarity in fact i've never seen it and i don't think any cases come up that we have seen where the agency involved then says that makes it proof from a four six one one zero challenge that the fact that it was a consent decree somehow changes the fight this from a fight what otherwise would clearly be a fight over i don't think anybody contends that if there was no consent decree this would this would be a final border and it does all the things that a final order would do from the f a a that  all of a sudden it magically isn't a fargo order because they've chosen to use a consent decree there's no case that that so indicates and that changes the character and as i say that the domestic security gates suggest there's nothing wrong with the contingency i grant you the contingency there was not a chord but should that really make a difference if it's a complication that the government obviously is is relying on having set it up to begin with but it really should not be subareas so so if if the f a a in the central district of california filed isn't necessarily final water for four six one one zero purposes absolutely not so why is this because this is a decision of the f a a which is subject only to a contingency which does it into a court order in its entirety it is still a final order of this is agency and if you think about i would suggest the the implications of that  if the f a a can't protect itself from review under four six one one zero which is absolutely essential whenever it does something like it has done here which severe airport from operations if it can shield that from review by the simple expedient of asking for a consent decree which is a very common thing why do you keep calling that a simple to thank your honor and may have please the court walters for the government for the order to be final unreviewable it must determine rights and obligations that is in the words of this court it must have a direct and immediate effect on the day to day business of the parties challenging the action but as your honour's questions demonstrate it was the consent decree and not the settlement agreement that had that direct effect is that an agreement was a can i ask there couple of provisions that cut against this view that now it's all about the consent decree so one of them is a provision that says the consent decree expires and once it expires that the expiration of the consent decree does nothing to impact the validity of the agreement which continues to have force and in fact doesn't that tend to support your friends few that the agreement is not force of fact so it's difficult to say that the settlement agreement rather than the concern over it why would you say the agreement became the agreement in addition to the consent decree became  final upon entry because it was drafted so that the the agreement piece of it would serve vive independent of and beyond the judgment piece of it pre expiration which is that only certain parts of this consent decree are judicially enforceable and one of the parts that's not judicially enforceable is the provision that says santa monica can stop running the airport in whatever twenty twenty nine so why doesn't that strongly suggest that what the parties wanted and what the court ordered was a sort of hybrid and some pieces of it would operate more like a judgment and others including the closure provision that they are most concerned with really were just the agreement  so a few things the first is again i would return to the fact that this agreement would have happened no force were not entered as a consent decree but as regards to that it's i think just a consequence of the fact that the consent decree on its face expires at the same time that the city is permitted to close the runway you know but even even before expiration this is in i'm looking at eight b i think so as the district court has jurisdiction after two thousand and twenty eight is in part six so that piece of it is never subject to enforcement through injunction that's true or not i'm not certain what the injunction that the district court would need to do would need to enforce there i mean that that that nothing needs to be done to permit the city to close the airport all that would need to happen would be for the f a a not to take affirmative action against  against the city and obviously if it were to do that that and the city could return to the f a a and say you just violated this promise that you have for many years so i'm not certain i think assume that the reason that they didn't write that and it's something that  that they like article three standing you're still taking that position we are your honor though i would emphasize that will much of that argument is based on their own admission that they would require an injunction against the city in order to are really asking for is an advisory opinion that they hope would persuade courts within the ninth circuit that the concept of what is so awful but the district court in fairness didn't have before it any of these arguments that your friends on the other side are trying to make and did try to make and try to intervene in the court district court said no it's true your honor that the district court didn't have those arguments before it that is in part because nerves did not so we can't really construe the district court's finding of a reasonable agreement as compelling evidence that it would not take into account an opinion from this court no validating significant likelihood or you know i don't want to quibble over the adverbs but there's some chance of that we're back to judge tables point that you they if they go from being absolutely for close to having a color argument and support from this court why isn't that good enough for addressability that still seems to me at least to be an advisory opinion i mean the only thing that that your honour's opinion would undoubtedly be very persuasive but it does wouldn't have any legal effect and i did want to make clear that the ninth circuit and the district court did have the ability to consider all of these arguments that are being presented all of the merits arguments could have been made  on the can i just ask on the merits if if we reach the merits why don't we have to remember at least on the surplus property act point the court made some of the required findings but not all of them and there wasn't a thirty day notice period and maybe those are the greatest violations in the world but they do seem pretty clear  obligations there had to have been obligations to release and petitioners have made absolutely no attempt to show that's true in arguing that exercise of the attorney general settlement of the word is unlawful and that is a necessary predi to their argument you don't think the surplus property act would apply to not not just a property right that's open and shut but one that's contested and that the government has asserted in case after case your honor i think if they want to say that the that the government acted on lawfully in entering into or an agreement yes they would have to show that in fact a release was actually granted and that requires the relation of and there's no question the release was granted it's so on the face of the agreement well certainly the agreement makes clear that if a release is necessary that it would be granted but that agreement also made clear that it wasn't  conceding either side's legal position and the position of the city which was hard fought was that there was nothing in force that could be released that i think i understand that but the federal government's position was just that there was  there was a continuing obligation and equally hard fought and worth litigating and i know the civil division doesn't pursue frivolous cases lightly so he gave up is underscores what social range about this collateral attack on the consent decree is that it really does require the litigation of the merits of the cases that were settled within the night circuit another way that i think is helpful to think about this your hon as an exercise of the attorney general settlement authority and in order to say that the attorney general acted unlawfully obviously a saddle that every method is unlawful if it violates the statue right but it would still be petitioners burton but come forward and say that the attorney a final word or both both your honor and also just a practical argument if procedure is gambit succeeds hardy's will be discouraged from settling with the united states but i concur with the united states that there is neither final agency action here nor redress ability but does take a step back the city had extremely strong or you don't think it's enough for standing in the  honor where the sixth circuit had finally decided an issue and this court said it was not going to decide the petitioners arguments before it because deciding it would have no practical effect because a sister circuit had already decided the issue but it would have a practical they could go to the district judge him california and say look the predicate on which you entered the consent decree has now been invalidated they could take it that the court would we said seriously  the court will take it seriously no doubt your honor but it's of the late my whole point that's the whole point of the survey increases the likelihood that they will succeed that's all they have to show i think for  under under this court for that the notion that it would have practical immediate effect on their rights it would it they would be taking it to the california district court and asking the district work to consider this court's views on the lawfulness of the settlement they should have instead if they wanted to challenge this complained in the consent decree court that was the court with jurisdiction over the consent to create that consent decree has now been final and on appealed for over a year and it's too late for them to go to the consent decree court now they came here twelve days after entry of the consent decree the united states moved to dismiss their petition here for lack of jurisdiction twelve days later and in that petition the united states specifically did not go there and they stay here judge will consider your question if this or at least i just am not that at least some of the challengers to different groups of challengers to slander standard tried to intervene and had pretty summarily why doesn't that cut in their favor at least at least to the extent that they're trying to go to the preferred form than they were that was there might have been pretty good reason to think that the f c c the f a a sorry adequately represented the interests on that side of the case and that appeal wouldn't have been very rigorous make clear that one can petition to intervene to can move to intervene to challenge a consent decree after its entry and the ninth circuit has suggested that one needs to do that however within the time to appeal which did not run until april the third yet they came to this court they came to this court on february the thirteenth the united states moved to dismiss for lack of jurisdiction in this war on february twenty fourth they opposed that motion in this court on march the sixth all within time under the ninth circuit's law to seek to intervene to challenge the consent decree in the proper court yet they did not do so the city has acted in reliance on this consent decree it has dismissed its lit spent millions of dollars shortening the run when neither party got what they wanted out of the settlement agreement and third parties on both sides are unhappy with the outcome but it is final if the teachers wanted to challenge it they needed to go to the consent decree court and appeal if necessary to the ninth circuit that was the proper mechanism to raise all of these challenges and yet they did not do it judge wilkins to your question no this court cannot and should not transfer this case to the ninth circuit first  there's no jurisdiction in any court of appeals to hear this under forty six one one zero for the reasons the united states has stated and so therefore there would be no jurisdiction to transfer it and no jurisdiction for the ninth circuit to hear if they wanted their complaints heard they need to go to the briefly the question of obligations not proving obligations the only place that we have certainly adequately alleged it in the  opening grief the only place we could have proven it would be in two cases that were dismissed by the other side they dismissed both the district court in the federal ninth circuit cases which we're is the only locus where you can prove that they were in fact obligated i think that's a red herring second of all and redress under the utah case i think you've already indicated the likelihood of redress is is the test if this court vacates the settlement then the city is back to being obligated and that alone will not be able to close the airport absent some further action about by some court and that alone is substantial redress with nothing else it's actually not likely would impact us to have one i'm sorry shortening of the runway which has already occurred well that occurred well after this case was filed and that's on the city they chose to go ahead and do it it hasn't been shortened per