concurring:
I concur, but write separately to explain the effect, as I see it, of our prior decision in Quality Brands, Inc. v. Barry, 901 F.2d 1130 (D.C.Cir.1990) (Unpublished Memorandum) (per curiam).
In Quality Brands, the district court determined that D.C.’s in-district warehousing requirement facially violated the Commerce Clause, that it was not justified by compelling government purposes, and that given the Supreme Court’s recent limitations, the Twenty First Amendment did not authorize the District’s discrimination. 715 F.Supp. 1138, 1140-42 (D.D.C.1989). D.C. appealed, and on appeal offered a new argument: that the congressional ABC Act directly imposed the in-district warehousing requirement, obviating any Commerce Clause inquiry. In an unpublished memorandum decision, we explained that
[w]e have elected to dispose of this appeal by unpublished order primarily because the most substantial argument put forward by the appellants — an argument which, if we accepted it, would allow us to avoid reaching any constitutional issue — was not properly raised before the district court. Under these circumstances, we think it *205unnecessary to discuss the several rather important and difficult questions of constitutional law involved. Instead, we affirm substantially for the reasons articulated in the opinion of the district court.
Kronheim’s subsequent suit against the District raised the same issue as the Quality Brands suit, i.e., whether the District constitutionally could require in-district warehousing. Kronheim asserted that the Quality Brands decision collaterally estopped D.C. from arguing the constitutional issues (although not the statutory claim). The district court agreed that D.C. was estopped since Kronheim could not easily have joined the prior suit and since estoppel was not unfair to the District. It cited our statement that “we affirm substantially for the reasons ... of the district court” in support of its conclusion that the District was estopped. Although the court noted the District’s argument that non-mutual collateral estoppel does not apply to the government, it stated that it was unclear whether this applied to state governments or to the District and then nevertheless, without resolving this issue, proceeded to apply the analysis developed in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329-31, 99 S.Ct. 645, 650-52, 58 L.Ed.2d 552 (1979), for non-governmental actors.
To be sure, our statement that “we affirm substantially for the reasons ... of the district court” is rather confusing. But I think the fair import of our decision, read as a whole, is that we expressly refrained from deciding the constitutional questions, both Commerce Clause and Twenty First Amendment, because the District had raised a new issue on appeal: whether Congress had imposed the warehousing requirement by statute — in which ease the constitutional issues would not be relevant. We did not publish in order to avoid giving our opinion precedential effect, which could only mean we wished to preserve the District’s opportunity to raise the issue again. It should be understood that not establishing a precedent in these circumstances is essentially the same as not creating collateral estoppel against the District, because only the District would be the subject of a subsequent suit. Although it is possible to read our memorandum, as does appellee, as leaving open only the statutory issue, Judge Sentelle’s opinion makes clear that the two are intertwined. And, it would be anomalous for us to conclusively resolve an important constitutional issue by simply stating we agree “substantially” with the district court.
Even had we decided Quality Brands in a published decision on the merits, it is not clear collateral estoppel would apply. Collateral estoppel is not generally available against the federal'government, U.S. v. Mendoza, 464 U.S. 154, 159-63, 104 S.Ct. 568, 571-74, 78 L.Ed.2d 379 (1984), and this rule may very well apply to the states. See Hercules Carriers, Inc. v. Florida, 768 F.2d 1558, 1578-79 (11th Cir.1985) (applies to states); but see State v. United Cook Inlet Drift Assoc., 895 P.2d 947, 950-52 (Alaska1995) (does not apply to Alaska). Mendoza held that the non-mutual offensive collateral estoppel applied in Parklane Hosiery did not pertain to the federal government because the government is not in the same position as a private litigant. The government litigates quantities of suits, often involving issues of public importance, and it may decide not to appeal for policy reasons or due to the constraints of limited resources. Making the first decision final freezes development of the law and forces the government to appeal every decision as a precautionary matter. See Hercules Carriers, 768 F.2d at 1578-79. (Of course that the District did appeal in Quality Brands does not affect this doctrinal reasoning.). We need not decide whether the Mendoza doctrine applies to District litigation, however, because in my view our Quality Brands opinion was not designed to and did not have preclusive effect.1
. I am also unsure whether the other requirements for non-mutual offensive collateral estoppel are met. See Parklane Hosiery, 439 U.S. at 329-31, 99 S.Ct. at 650-52. For the reasons discussed above, it is not clear that the constitutional issues were actually and necessarily determined in our prior decision, since we purported not to reach them. And given our refusal to reach the issues in that appeal, it seems unfair to bind D.C. to the district court decision. It also appears possible for Kronheim to have intervened in the prior case; clearly Kronheim’s ability to determine where to locate its warehouses *206was at stake, even if it had no plans for an immediate move.