dissenting:

I respectfully dissent from the majority’s conclusion that there is a constitutional impediment to our resolution of this case.

I conclude that the advisory opinion doctrine is narrower than the majority intimates. A case does not become nonjusticiable simply because it involves the assumption of underlying factual or legal matters. As we pointed out in Chadha v. INS, 634 F.2d 408 (9th Cir.1980), aff 'd, 462 U.S. 919 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983), courts often “adjudicate disputes in which legal or factual matters are conceded.” Id. at 419. Indeed, courts frequently assume without deciding a predicate legal question and simply move on to a subsidiary inquiry which resolves the dispute. See, e.g., Edelman v. Western Airlines, 892 F.2d 839 (9th Cir.1989) (declining to address whether airline employee had property right in her continued employment and deciding that even if she did, she had received all the process she was due).

In this case, there is a clear controversy concerning whether CIT and ASB’s Chapter 11 claims have priority status over Chapter 7 administrative expenses. Although the resolution of this issue has two subparts — whether their Chapter 11 claims have superpriority status, and, if so, whether that superpriority claim has priority over Chapter 7 administrative expenses, the Constitution does not dictate the order in which those subparts must be addressed.

Neither of the two cases relied upon by the majority persuades me otherwise. In Vieux v. East Bay Regional Park District, 893 F.2d 1558 (9th Cir.1990), there was no case or controversy because the appellants brought a quiet title action against the park district when the park district did not hold any valid legal interest in the property which was the subject of the dispute. Id. at 1572-73 . We concluded that “[a] declaration as to the rights to the land would be ... futile.” Id. at 1573 . This case is different. Here, there is an underlying dispute about the priority of CIT and ASB’s claims and thus our resolution of the issue presented would not be “futile.” The majority’s citation to North Carolina v. Rice, *905 404 U.S. 244, 246 , 92 S.Ct. 402, 404 , 30 L.Ed.2d 413 (1971) (per curiam), is likewise unpersuasive. Rice was decided on the basis of mootness. Id. at 248 , 92 S.Ct. at 405 . ASB and CIT’s claims of priority status are clearly not moot.

The Bankruptcy Appellate Panel’s (BAP) decision here was similar to our decision in Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc). The initial panel held (1) that the Equal Access to Justice Act (EAJA) provides for awards of attorneys’ fees in deportation proceedings, but (2) Es-cobar Ruiz was not entitled to attorneys’ fees because he was not the prevailing party. Id. at 1022 . The en banc court held that the EAJA did indeed apply to deportation proceedings. Id. at 1029 . The dissent contended that the majority had rendered an advisory opinion because the issue whether Escobar Ruiz was a “prevailing party” disposed of the case and there was no reason to reach the issue of the applicability of the EAJA. Id. at 1031 . The majority rejected this argument, stating:

Id. at 1029 n. 15. Similar to the majority opinion in Escobar Ruiz , the BAP decided to address the broader question of the relative priority of Chapter 7 administrative claims and Chapter 11 superpriority claims before addressing the narrower question whether ASB and CIT’s claims actually were entitled to superpriority. While this ordering of the issues may not be the most desirable, Escobar Ruiz teaches that the sequence in which a case or controversy is resolved does not determine its justiciability-

For these reasons, I believe that this case presents a justiciable case or controversy which we have an obligation to decide. However, since the majority disagrees, I will forego any expression of my views on the merits of this case. I respectfully dissent.