We have since adhered to the Hicks decision disallowing offensive collateral estoppel effect to an alternative ground left unaddressed by the appellate court. See Dow Chemical v. U.S. E.P.A., 832 F.2d 319, 323 (5th Cir. 1987); Breen v. Centex Corp., 695 F.2d 907, 915-16 (5th Cir. 1983). In Dow Chemical, Dow had argued that we should not give estoppel effect to the issue in question because we had affirmed the district court's earlier judgment on other grounds.

The other courts which have addressed the same or similar issues are in agreement with our reading of the statute. For example, in Dow Chemical v. United States Environmental Protection Agency, 832 F.2d 319, 323 (5th Cir. 1987), the Fifth Circuit stated that a "`final agency action is one that imposes an obligation, denies a right, or fixes a legal relationship.'" (quoting Geyen v. Marsh, 775 F.2d 1303, 1308 n. 6 (5th Cir. 1985)).

Relying on Dow Chemical v. EPA, this Court in Consensys held that the enforcement actions there were not final agency actions. 2024 WL 4438969, at *4 (citing 832 F.2d 319, 325 (5th Cir. 1987)). And the Fifth Circuit in Dow Chemical relied on a Supreme Court case, FTC v. Standard Oil Company of California, which held that filing an enforcement action was not final agency action.

Where, as here, the appellate court did not affirm every ruling of the lower court, only the decisions essential to the appellate court's holding are entitled to preclusive effect. See R.S. Judgments § 27, Comment o; Dow Chemical v. United States Environmental Protection Agency, 832 F.2d 319, 323 (5th Cir. 1987) ("federal decisions agree that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision"), citing, 18 Charles A. Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure, § 4421 at 205 (1981) ("Wright and Miller"). Accordingly, the facts essential to the Supreme Judicial Court's decision concerning the 1993 Parade are entitled to preclusive effect unless there has been a change in a controlling fact with regard to the 1995 Parade.

SOCAL's "definitive nature of the action" element can be analyzed using another formulation which defines "final agency action" as action that "establish[es] new rights or duties" or "fix[es] a legal relationship." Dow Chemical v. EPA, 832 F.2d 319, 324 (5th Cir. 1987); Greater Cincinnati, 879 F.2d at 1382. The EPA letters neither establish new rights or duties, nor fix a legal relationship between Burnham and the EPA.

Federal caselaw makes clear the general proposition that, when a lower court decides a case on multiple issues, and an appellate court decides only one issue and disregards the others, collateral estoppel will not bar re-litigation of the unreviewed issues; the doctrine only will apply to bar re-litigation of those issues specifically passed upon by the appellate court. See Dow Chem. v. U.S. EPA, 832 F.2d 319, 323 n. 24 (5th Cir. 1987) (noting, "`The federal decisions agree that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision.'") (quoting 18 Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 4421 (1981)); see also Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 754 (2d Cir. 1996); Restatement (Second) of Judgments § 27 cmt. o (1980).

18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE (JURISDICTION) [hereinafter WRIGHT & MILLER ] § 4421 (3d ed. 1998). See also , e.g. , Dow Chem. v. EPA , 832 F.2d 319, 323 (5th Cir. 1987) ("Dow maintains that it cannot be bound by the district court’s decision because this Court affirmed on other grounds. We agree. ‘The federal decisions agree that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision.’

See Borst v. Chevron Corp., 36 F.3d 1308, 1314 n.11 (5th Cir. 1994) ("Because we do not consider whether or not a partial vertical (or horizontal) termination occurred, the district court's ruling on this issue is not conclusive between the parties."); Dow Chem. v. EPA, 832 F.2d 319, 323 (5th Cir. 1987) ("The federal decisions agree that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision.") (quoting 18 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 4421 (1981)). Because the final judgment as to Haynes's ineffective-assistance-of-counsel claim rested solely on procedural grounds, the majority opinion's suggestion that our current review is constrained by 28 U.S.C. § 2244, which applies when a claim has been adjudicated on its merits, is unfounded.

This court concluded that review was inappropriate because: Because "finality" is only one of the four "ripeness" factors, an agency action may be final without being ripe. Dow Chem. v. United States Envtl. Protection Agency, 832 F.2d 319, 324 n. 30 (5th Cir. 1987). Thus, even when an interlocutory agency decision is "final," this court has long imposed a ripeness requirement, even where the statute authorizing its review did not do so.

Finally, the IRS determined that, because Chevron had relied in good faith on its earlier ruling that no partial termination of the Gulf Plan had occurred, Chevron was entitled to section 7805(b) relief for the period beginning January 1, 1984, and continuing through December 31, 1991, at which time Chevron had fully vested all employees affected by the vertical partial termination. Because we do not consider whether or not a partial vertical (or horizontal) termination occurred, the district court's ruling on this issue is not conclusive between the parties. Dow Chemical v. United States Envtl. Protection Agency, 832 F.2d 319, 323 (5th Cir. 1987) ("`The federal decisions agree that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision.'") (quoting 18 C. WRIGHT, A. MILLER E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4421 (1981)); RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. o (1982). II. Entitlement to Surplus