Question 1. Is this Court willing to use its
supervisory power to formulate a rule (fashioned after
FRAP 28(j)) which requires a Court of Appeals, when
desiring to decide a case based on an authority issued
after the appellate briefing was complete, to first
provide the parties an opportunity to be heard on the
appropriateness of the new authority?

Question 2. Is this Court willing to use its
supervisory power to formulate a rule which prevents
a Court of Appeals from deciding a case based on a
legal theory which was neither briefed by the parties
nor identified in the parties ' statements of issues
presented for review under FRAP 28(a)(5), 28(b)(2);
or, to at least create a rule which requires the Court
of Appeals, before issuing its decision, to first provide
the parties an opportunity to be heard on the
appropriateness of that legal theory?

Question 3. Should the appellate case below be
reopened because the Ninth Circuit decided the case
based on an authority which arose after the appellate
briefing was complete, without affording the parties to
be heard thereon?

Question 4. Should the appellate case below be
reopened because the Ninth Circuit decided the case
based on a legal theory which was neither briefed by
the parties nor identified in their statements of issues
presented for review under FRAP 28(a)(5), 28(b)(2)?

Whether the Supreme Court will use its supervisory power to require Courts of Appeals to provide parties an opportunity to be heard on new authorities or legal theories not originally briefed