A jury has already found usapa guilty of DFR by not using the Nicolau. The ninth circuit said usapa MIGHT find a seniority list that is not the Nicolau IF it does not cause the harm the west fears. Anything other than the Nicolau harms the west.
So Judge Silver can say with certainty that IF the company uses anything other than the Nicolau in her opinion would harm the west and be a DFR. Follows the ninth's opinion of not ripe. As soon as usapa got something other than the nicolau passed it would be ripe and it would harm the west.
But the APA majority is not going to get involved with that DFR danger.
USAPA objects to and moves to strike Plaintiff’s statements of fact that relate to
the jury and court findings in Addington v. USAPA, (“Addington I”), in that the vacatur
by the Ninth Circuit results in the vacating ab initio of all substantive findings and rulings
in Addington I, as if it never occurred. As observed by Judge Wake, “the substantive
rulings in Addington have been vacated pursuant to mandate, and both cases would now
write on clean slates if there were anything to write in Addington, which there is not.”
2010 WL 4117616, at *2 (D.Ariz. Oct. 19, 2010). The Ninth Circuit’s reversal
“effectively annuls or sets aside the lower court's decision for all purposes.
Consequently, any issue implicated by the reversal must be readjudicated as if the
appealed judgment or order never occurred.” C. Goelz & M. Watts, Rutter’s California
Practice Guide: Federal Ninth Circuit Civil Appellate Practice § 10:231 (emphasis in