is now in session ok thank you welcome everyone to this session we appreciate you being here and just a reminder that you are not permitted to photograph videotapes audiotapes this proceeding yourself when it is your charge we're not very good at lip reading ok with that we will begin with mr parker on behalf of the city of shirts yes thank you your honor good afternoon and may it please the court my name is james parker and i represent the appellant the city of shirts the central issue before the court in this case is whether the court's two thousand and seventeen decision in green valley special utility district versus city of similar remains good law in light of more recent supreme court precedents and also in light of the on bob court's decision in green valley side versus city of showers i'm glad you got inconsistent with north alabama so so i guess my question the that's that's not much of a question my question is to what extent does your argument depend on so below being bad law because i mean it's still good right well respectfully your honor i think we would disagree with that in light of more recent supreme court preceden that congress is use of v is not decisive the supreme court in those two cases decided within the last eighteen months as exp expressly rejected the simple oh rule of statutory construction in both cases have held that when congress uses the direct article be followed by a single now here it's  service that congress uses that language purposefully and we have to apply the plain meaning and that means a single specific particular n no your honor they're there not after the on bond decision there before the on bond situation but the on bond decision didn't do anything with respect to civil it didn't day because we don't need to get there in this case well but today is that day so the court didn't get into nielsen didn't get into cochise county because it was enough to  discuss these cases your honor she did not she didn't discuss the case she came to the same decision independently which i think is a very clear and straightforward reading of the statute that  when you have a direct article and a singular noun that means one and that was that was not reached by the on bond court because it was enough to overturn the district court's  said we're announcing a new rule two hundred and forty years down the road we have a new way of looking at what the word they means or were they simply applying many many years of for the concept that the use of the direct article following a single noun is decisive it doesn't cite a long line of cases going up to it it actually cites  unequivocal and it from that standpoint nielsen in particular is perhaps new from the standpoint that it very clearly says that the the direct article followed by the singular noun that's determinative and that is directly contrary to the rule of statutory legally license isn't authorizes this panel to take up now what was what was what aside at that time in other words rule in your favor based upon the interpretation i think in light of nielsen co chief county it's no longer a close question of statutory interpretation but it says this is a close issue statutory interpretation and that's close call the tie goes to the run bound by the plain language of the statute here the plain language of the statute protects these service that is provided or made available explicit overturning of our decision and not just we would guess the supreme court might go the other way of course since they did nicer in simple ode but any way that we would guess they would go the other way that gives us the right as a panel to overturn a prior decision so regardless of whether solo is right we need more than just a guess that the supreme court is kind of getting more careful about their textual analysis of statutes than they were before that's not enough to give us the right to overturn a part decision whether we agree with that or not well i certainly understand and appreciate that your honor and i'm not  the court to do anything radical and certainly not asking the courts to reject the rule of ordinance but i'm asking the court to do is follow the supreme court are far more unequivocal and far more specific then what came previously to the point that if civil oh were to come out were to come up to  court today for the st time it would not be a close call in light of those supreme court decisions a court would not adopt the rule of statutory construction that it  dotted in two thousand and seventeen the court in two thousand and seventeen was very specific and had a very specific holding that congress is use of the is not decisive that holding has been rejected by the supreme court that that decision has been rejected by the supreme court it merely on the other on other statutes but within those statutes we're talking about the same thing we're talking about the direct article and so the the rule on which civil o rests has been soundly rejected by the supreme court and sure it is not asking the court to reverse so below to reverse that rule adopted by the civil court i think what we're asking the court to do is recognize that the supreme court has already done that for when if you apply supreme court precedent let's look at some options here let's assume that we don't agree with here and that this panel is bound to cognizable injury under article three i really hate your honour's hypothetical but yes in your in your honest hypothetical yes that's correct a poll hypothetical i mean but they didn't you know so it is so if we're bound by it i think it means i think it means you don't have standing of course that doesn't mean that you can't see gone bonkers on civil oh and it also doesn't means that you could also s service because there is a circuit split yes you're on yes we could do all of those things your honor that's right however i think a critical part in owens opinion the part in which she dissented actually was the point of why should the court require that i think in light of the supreme court precedent in light of the on bank court's decision that there's not a tie goes to the runner rule i think it's apparent to everybody that simple o is no longer good law we should apply the supreme court  and so requiring the supreme court to intervene and revolver's all the circuit splits is wasteful to waste judicial resources and and it's unnecessary when in light of that supreme court precedent and in light of the on bond decision there shouldn't be a circuit split to begin with so you know the supreme court that's what they do write the certainly understand that i see my my time as quickly expired and so a leave the remainder of my time for a bottle unless the court has any further questions valley and church have been embroiled in a years long period where i don't dispute over their respective rights to provide water and wastewater services i'm sure it has now brought the u s d a into the fray challenging the agency's actions under the administrative procedure what those concrete plans are and even without an approximate date of when that sunday would occur are simply insufficient to support the finding actual or imminent injury here th record actually a numerated what types of factual allegations shirts could have pleaded that shirts could have pleaded satisfied as a burden it could've described the concrete plans that it had for development where those find a lack of jurisdiction on one eye but i believe so your honor if you the lack of finality is a question of subject matter jurisdiction and something that cannot be weighed if the court finds my back standing and so we don't have bill w lab jurisdiction so if we find a lack of standing are we done or did is that issue of the finality of ninety one it provides the laundry list of decision points that remain to be made the question before the court under my malady is whether the agency's action constitutes consummation of the agency's decision making  process and here there are a number of decision points that remain to be made the best case on this point is the who's in the state versus u s army corps of engineers case and the reason that complaint here is because the kind of sticking point for this court in louisiana state versus u s army corps of engineers was the fact that there the army corps of engineers contemplated executing rd party contracts before the project to  we've not been able to touch on the st two points which is constitutional standing and lack of finality the gist of this is back to the road map again the the rd and th independent bases for  its claim falls outside of the zone of interest intended to be protected by section nine hundred and twenty six dollars b if you want to focus on the constitutional standing argument because a significant amount of attention time has been spent to the correctness or dismissal for lack of constitutional standing and that this position to the extent that this is is attractive to the court that this position makes it unnecessary to consider whether civil love is correct or incorrect it makes it unnecessary for the court to weigh in on whether civil is correct or incorrect so the court can affirm based on church's failure to plead with specificity its concrete plans moving now i'm kind of jumping around here but moving out to the prudential standing arguments these are the alternative arguments upon which this court can actually affirm even though the district court did not reach that course under moncrief the court can affirm on on an issue that the district court cannot reach or did not reach shirts his complaint amounts to a general audience for events and therefore it's it lacks prudential standing the court need look no further than sure it's complaint and it's appellate briefs to see that asking the court to wade into the arena of the representative branches of government and that's what she declined that invitation th and finally the courtship from judgment in favor of u s d a and they get shirts because shirts s this court has held that the statutory objectives of section one hundred and twenty six b are to encourage rule water development by expanding the number of customers that would get to use those rules systems and here of course i grew with ms nobles comments that if the court lacks article three jurisdiction understanding there is no need to reach the question of final agency action as judge paints appropriately put it you don't have to  subject matter jurisdiction i do want to comment on services statement that intervening supreme court authority makes this case a candidate for four getting out of the ordinary rule of border orderliness and i'll make a couple of comments on that the st is if serbs actually believe that then after they aren't bought decision  in which judge duncan and several others wanted to overrule civil oh they would have appealed that case to the supreme court and had the supreme court take the issue that it already denied  and previously when civil it took the case the argument regarding b is that is an argument that has been there from literally the st pleading that's been filed and it's the same argument that's been made in several different instances including very extensively in the on pong briefing and argument so there's nothing new about the definitive  article argument and it's just a rule of stats for interpretation that in this case conflicts with another rule of statutory interpretation which is the singular imports the plural where it's appropriate and these are just conflicting rules of statutory that changed the world and so we're not bound by religion or innocent or couple of things st is that they are just ordinary rules and steps for interpretation case cases neither of those cases stands for the proposition that when the word of the appears in any statute not disposed at shoots but that in any statute it's always to trolls the outcome of the case those cases just do not stand for that proposition what those both of those cases are are examples of cases where you look at the words in the context of statute and you apply rules to sets or interpretation in this instance they want to use the in a  way that hooks into words that they would like to write end of the statute but which the panel and civil oh correctly said are not there as you know judge change you may remember from the unanimous opinion in that case said wasn't period end of story it was because and that case the three possible constructions of the statute that panel concluded all would come out the same way with the argument that was being asserted on the that's what it meant it didn't mean the never matters oh my gosh of these and irrelevant concept and woe is that we find out it is relevant in these later supreme court cases i mean that it again you have to look at the context of what the panel was saying if we didn't just say there is never decide to patronize day and then the supreme court changed that in fact we were aware that the matters and so again you can agree or disagree with several oh but it's not like we came up with some statement that was clearly refuted later could have said it better myself and the fact that the fact that the argument has been made from the st time any plating has been filed in both the civil case and the service case just stands for the basic basic proposition that the in front of the word in this case and now is one of the rules they use test for interpretation and that there's nothing remarkable about the neilston or co chief cases all of those arguments have been hashed and rehashed and and look i'm happy to re argue the merits of the below the court wants to but  i don't see the profit in it frankly well i mean the days we've all had a chance to look at it and the question is are we bound by it because if we are it doesn't really matter what we think of it at least to this  the answer to that is yes and that the two cases that they've sided do not stand for the proposition in any way shape manner or form that the word be in any statute not just the two statutes that are at issue in those cases is determinative let me just take the false claim that statute that issue of the word the and that instance is it related to a united states official and because it was false claims act there was a question about whether a private party you know what how about how the private party works and the context of the statute that talks about a u s official so you have to look at the in the context of the statute there's nothing determinative about those cases that change the fact that he is simply one of the rules or one of the things that you look look at in the statutory interpretation case and again i would say if they if shirts  really thought that they would have taken on bond opinion up to the supreme court to say source you're already on that but they did not i don't i do want to mention before i run out of time that if you look at just the article three question search as effectively conceded that the civil opinion as it stands today if it applies precludes them from having article three standing i do want to mention that if the court were ever to look at the question produced up for eventually standing which it does not have to reach if if there is no article three standing that there is is to protect the utility and utilities customers it would be an odd thing if an encroaching city that is trying to take the customers of a rule utility that's federally indebted would been briefed by us but it has not been talked extensively and i think it's important for the poor to understand and that is in addition to civil oh as a as a as a case that forecloses article thr standing it's important for the court to know that texas utility law grants in this case a c c and to green valley texas law in addition to federal law texas law provides the monopoly rights the exclusive right to serve that shorts complaints about it i mention this because when you look at injury causation redress ability under lu exas p u c that's an independent basis for those monopoly rights that that search complains about and so put this in another and then another way even if there were not a new federal law that doesn't give sure the right to serve customers inside a green valleys service territory i see that my time is up i'm happy to answer any questions or has any ok thank you  providing service within an area that state law previously had j v side as these sole provider my friend would suggest that we should petition for cert on a case that we want i'm not even sure that we can do that procedurally i can tell you though that i would get some our star brows in washington if we tr can appeal we can seat search or ari on a case where we just wanted to win on this additional reason as well but the reason we wanted that case was was great because the pipes in the ground   it's great that i have a water pipe going to my house that doesn't help me if the nearest sewer pipe is thirty miles away and so the pipes in the ground tests i think dovetail specifically here with is the focus d of types in the ground test is the physical ability to make that service available and it's that physical ability to make the service available which was funded created by the project which is funded by the federal loan which is at issue and the physical ability slash pipes in the ground test only works when the service means the service that is funded by the federal law lastly your honor i just want to talk quickly about the two points  made by the u s d a on final agency action the this loan is not closed but all that is left to do is execute a closing documents the decisions have been made and that's the test for finally agency action is final agency decision making over and yes it isn't don't take my word for it take the word of of  form that they issued this is form r d one thousand nine hundred and forty dash seventeen i believe and it says that all of the committee and administrative determinations have been made closing of this lo isn't an additional decision it's merely the implementation the execution of the decision that's already been made and lastly your honor unpretentious standing is the court knows credential standing results and dismissal with prejudice in the court can't absent a cross appeal which isn't present here can't substitute a dismissal without prejudice for a dismissal with prejudice that would give the athletes more than they got at the district court  level for these reasons your honor we have pleaded standing assuming civil low is no longer good law as i think we have to in light of the on bank decision and in light of recent supreme court precedent we did plead sufficient facts for the immediate term what we didn't plead the district court held was sufficient facts to say that we have an injury after that lot that water alone expires in two thousand and forty three we didn't have enough injury we didn't plead enough injury to show that seventeen year period from two thousand and forty three to two thousand sixty seven low is not good law and we have injury today we've played of that and therefore we asked the court to reverse the decision that history or thank you thank you counsel we have everybody's arguments and cases under