norml01 - Page 7

 |
 While Petitioners agree with Respondent that the "law
 i of the case" doctrine dictates that an issue in a case _'which has
 previously been determined is ordinarily binding upon a later
 a court_" see Resp_ Bro at 9_ this doctrine applies only to a
 determination that fully resolves an issue or that specifically
 i and explicitly answers an argument. As the Supreme Court has
 i observed_ "[o]ur cursory consideration in [prior] cases does nots
 of courses foreclose this opportunity to consider more fully this
 question°" Massachusetts Bd. of Retirement v. Murqia, 427 U.S_
 307_ 308 nol. (1976). Similarly, this Court has held that
 "[q]uestions that merely could have been decided do not become
 the law of the case; only when an issue not expressly addressed
 must have been decided by 'necessary implication U will the
 l doctrine be applied." Bourchet v. National U__rban Lea_9_ 730
 F.2d 799, 806 (DoC. Cir. 1984) _
 I Given these limitations -_ which make clear that the
 l doctrine applies only in narrowly circumscribed situations --
 Petitioners _ appeal is not foreclosed by the prior decision.
 While Petitioners did raise similar argumentsr this Court did not
 specifically answer the challenges now on appeal, nor were these
 challenges in any way answered by "necessary implication°" In
 the prior appeals Petitioners argued that l) the Administrator
 was borrowing inappropriately from the FDA standard; and that 2)
 the Administrator's eight-part test was logically impossible to
 satisfy. As stated by Respondents one petitioner also raised the
 I argument that the Administrator, in issuing the decision at issue
 i in that appeal_ committed procedural error by failing to provide