Whether a Court of Appeals panel can, consistent with Steel Company v. Citizens for A Better Environment, avoid a res judicata bar by determining that a prior panel applied hypothetical jurisdiction

QUESTIONS PRESENTED 1. Whether a Court of Appeals panel can, consistent with Steel Company v. Citizens for A Better Environment, 523 U.S. 83 (1998) and the Constitutional requirement that courts have jurisdiction to proclaim the law, avoid a res judicata bar by determining that a prior panel in a separate case applied hypothetical jurisdiction, even though the latter decided the case on the merits and ruled that remaining challenges, including to subject matter jurisdiction, were “unavailing” and gave no indication that it was using hypothetical jurisdiction to reach the merits? 2. Whether a standard for assessing subject matter jurisdiction under the Terrorism Risk Insurance Act of 2002 (“TRIA”) Pub. L. N. 107-297, § 201, 116 Stat. 2322 (2002), codified as amended at 28 U.S.C. § 1610 note, which requires the district court to disregard the express findings of the state court rendering a TRIA judgment and prior federal full faith and credit determinations, violates principles of federalism and intrudes on the state’s powers given to it under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1605(a)(7) (repealed 2008) and 1608(e)?