United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2005 Decided May 27, 2005
No. 04-5098
VENETIAN CASINO RESORT , L.L.C.,
APPELLANT
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
APPELLEE
Appeal from the United States District Court
(USDC) for the District of Columbia
(No. 00cv02980)
Kenneth J. McCulloch argued the cause for appellant. With
him on the briefs were Richard Rosenberg, John J. Manier, and
Steven D. Cundra.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
Edith M. Shine and R. Craig Lawrence, Assistant U.S.
Attorneys, entered appearances.
Before: EDWARDS, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
2
EDWARDS, Circuit Judge: Venetian Casino Resort, L.L.C.
(“Venetian”) appeals the District Court’s dismissal of its
complaint against the Equal Employment Opportunity
Commission (“EEOC” or “Commission”) on ripeness grounds.
The gravamen of this case is Venetian’s contention that EEOC
follows an unlawful rule or practice (“disclosure policy”) that
permits the agency unilaterally to release privileged documents
submitted to EEOC by a private party without first notifying the
party. Venetian argues that a substantial probability exists that
it will be harmed by this disclosure policy, because it has
already provided EEOC with confidential and proprietary
information in response to employment discrimination
complaints filed against it, and because EEOC seeks additional
trade secrets and/or confidential information from Venetian
through an administrative subpoena issued in connection with
EEOC’s investigation of these complaints. We hold that, with
respect to trade secrets and/or confidential documents presently
possessed by EEOC relating to a pending age discrimination
investigation, the case is clearly ripe for review.
The parties’ litigation positions have obscured the issues in
this case, so it is impossible to discern whether the alleged
disclosure policy in fact exists. When they were before the
District Court, the parties focused on an agency rule that is no
longer in force and never informed the District Court that
relevant portions of the Commission’s rules on disclosure of
information in “open” case files, contained in EEOC
Compliance Manual (“Manual”) Section 83, had been revised.
The parties’ arguments before this court regarding the contours
of the agency’s disclosure policies did not clarify matters.
Moreover, during arguments before this court, EEOC appeared
to take a different position on the disputed disclosure policy than
the position advanced by agency counsel before the District
Court. Because the record is deficient, the District Court’s first
task on remand will be to determine whether the purported
disclosure policy actually exists.
3
If EEOC does have a disclosure policy that allows the
agency to release documents that the submitting party has
identified as containing trade secrets and/or confidential
material, without first notifying the submitting party, then the
District Court must determine in the first instance whether such
a policy is lawful. The case will therefore be remanded for
further consideration by the District Court.
I. BACKGROUND
Venetian operates a hotel, casino, and resort in Las Vegas,
Nevada. In 1999, Venetian conducted a “mass hiring process,”
during which it employed approximately 4,400 persons out of
roughly 44,000 applicants. Am. Compl. and Pet. ¶ 4, reprinted
in Joint Appendix (“J.A.”) 6, 8. In the wake of this hiring
process, several applicants filed employment discrimination
complaints with EEOC against Venetian, alleging discrimination
based on age, race, and color in violation of the Age
Discrimination in Employment Act of 1967 (“ADEA”), as
amended, 29 U.S.C. § 621 et seq. (2000), and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000). The
Title VII claims have since settled, leaving only the age
discrimination claims under the ADEA. See Stipulation of
Dismissal of Part of Pl.’s Am. Compl.
In response to the age discrimination charges, Venetian
provided EEOC with relevant information that it deems
confidential and proprietary. See Decl. of Richard Rosenberg in
Supp. of the Resp. by Pl.-Pet’r to the Mot. by Def.-Resp’t To
Dismiss the Compl. (“Rosenberg Decl.”) ¶ 5, reprinted in J.A.
71, 75. EEOC subsequently issued an administrative subpoena
for additional documents. Venetian petitioned to revoke or
modify the subpoena, citing confidentiality concerns. When
EEOC denied the petition, Venetian brought this action seeking
declaratory and injunctive relief.
4
Venetian’s principal contention is that EEOC follows a
policy that authorizes the agency to disclose trade secrets and/or
confidential information to “charging parties” in actions before
EEOC without first notifying the party who submitted the
information, and that this policy is inconsistent with the Trade
Secrets Act, 18 U.S.C. § 1905 (2000), the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 553, 701-706 (2000), and
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552
(2000).
According to Venetian, this disclosure policy constitutes an
end run around the Commission’s regulations implementing
FOIA that provide that “confidential commercial information”
“provided to the Commission shall not be disclosed except in
accordance with [the] section” that requires “explicit notice of
a FOIA request for confidential commercial records” under
certain circumstances and, where such notice is provided,
opportunity for the party that submitted the documents to object
to their disclosure. 29 C.F.R. § 1610.19(a)-(b), (d) (2003). The
exemptions from the Commission’s FOIA regulations indicate
that “[s]pecial disclosure rules apply to the case files for
charging parties, aggrieved persons on whose behalf a charge
has been filed, and entities against whom charges have been
filed.” 29 C.F.R. § 1610.17(d) (2003).
Both Venetian and EEOC agree that the special disclosure
rules for information in “open” case files are contained in EEOC
Compliance Manual Section 83, though their arguments before
the trial court were framed around an outdated version of the
Manual. Venetian’s argument turned in part on provisions in the
former Manual that expressly provided that an ADEA charging
party and his or her attorney could review the charging party’s
file so long as certain information, which did not include
confidential commercial information as defined under the FOIA
regulations, was removed from the file. See EEOC Compl. Man.
§ 83.1(a) (BNA 1993), EEOC Compl. Man. § 83.6 (BNA 1988),
5
reprinted in J.A. 104-07. EEOC failed to recognize and,
consequently, to alert the District Court that the Manual on
which Venetian relied was outdated. As a result, both parties
and the District Court focused on a disclosure rule that no longer
exists.
The relevant provision in the current Manual does not
contain the explicit language authorizing disclosure to charging
parties and their attorneys. See EEOC Compl. Man. § 83.1(a)(1)
(BNA 2001). Neither party has presented a coherent
explanation of the current disclosure regime and, specifically,
the revised Section 83.1(a), but the provision appears to limit
disclosure of information contained in ADEA open files to
disclosures that are authorized in the Commission’s FOIA
regulations and the Privacy Act System of Records for ADEA
case files. See id. § 83.1(a). The Privacy Act System of
Records that relates to ADEA case files, permits, as one of six
“routine uses,” disclosure of “pertinent information to a . . . third
party as may be appropriate or necessary to perform the
Commission’s functions under the [ADEA].” EEOC Privacy
Act of 1974, Publication of Systems of Records, 56 Fed. Reg.
10,889, 10,889-90 (Mar. 14, 1991) (EEOC-1 Age and Equal Pay
Act Discrimination Case Files, routine use (a)). Such routine
use is distinct from the routine use of “closed” ADEA case files,
or files for which “the Commission has terminated its
investigation and has decided not to sue,” where the permissible
disclosure to employers, employees, or their representatives is
limited to “non-confidential and non-privileged information.”
Id. (EEOC-1 Age and Equal Pay Act Discrimination Case Files,
routine use (c)).
Counsel for EEOC unequivocally conceded before the
District Court that, under the Commission’s current disclosure
regime, special rules that do not require notice would apply to
Venetian’s documents with respect to their disclosure in
furtherance of the pending age discrimination investigation:
6
THE COURT: [O]bviously opposing counsel has grave
concerns that the agency’s staff at this point in time could
reveal certain documents they have already produced . . . .
They could reveal them under existing regulations of the
agency in furtherance of the investigation . . . under which
they would be shown to third parties, whether they be
prospective counsel, to represent claimants, or prospective
witnesses . . . .
. . . [D]o you read the regulations as they currently exist
permitting agency staff in furtherance of the investigation
to share with these types of individuals or entities
documents that have been produced by a party such as the
Venetian, even though they have been marked confidential
and designated as confidential, if it is in furtherance of the
investigation? Do you agree that that is permissible by
agency staff?
[EEOC COUNSEL]: Yes, Your Honor, I do, and we noted
that in one of our briefs. During our investigations, as part
of the investigative technique, investigators may share
limited information with parties, with a charging party or
the respondent, or with witnesses, to elicit more
information. . . .
I do want to argue, though, that it would seriously
interfere with our law enforcement responsibilities of
investigating and making findings if we had to stop and
give respondent-employers notice every time we decided to
provide a small amount of information.
Tr. of Mot. Hr’g (July 2, 2002) at 69-71, reprinted in J.A. 129,
133-35 (emphasis added).
On appeal, however, counsel for EEOC suggested that,
where the releasing party has indicated that the documents are
trade secrets and/or otherwise confidential, such information
would not be released in the course of an investigation or in any
7
other context, without prior disclosure to the party that
submitted the material. See Recording of Oral Argument at
23:38-25:19, 26:29-:49. When pressed on the issue, however,
counsel expressed uncertainty regarding whether EEOC has any
policy on the disclosure of trade secrets and/or confidential
information in the course of an investigation and, if so, the
precise contours of that policy. See id. at 27:54-30:04.
Venetian maintains that the Commission in fact continues
its practice of disclosing confidential information to parties
incident to an ongoing investigation, without notice to the
submitting party. See, e.g., Am. Compl. ¶ 67, J.A. 33-34 (“One
of the [FOIA] exemptions from disclosure is ‘trade secrets and
commercial and confidential information.’ . . . EEOC makes this
category of information available to charging parties and their
attorneys, without any reference to the protections accorded by
the FOIA.”) (citing 5 U.S.C. § 552(b)(4)); Rosenberg Decl. ¶ 8,
J.A. 77 (“EEOC’s own policies on the rights of persons who
submit information to EEOC is to ignore FOIA and the
Administrative Procedure Act when the document requester is
either the charging party, their attorneys, or their prospective
attorneys.”). Venetian seeks a declaratory judgment that the
alleged policy is contrary to law and an order enjoining EEOC
from releasing any confidential information submitted by
Venetian. See id. at 19 (“Sixth Cause of Action”), J.A. 24.
Venetian also seeks an injunction restraining EEOC from
requiring it to submit confidential information pursuant to the
administrative subpoena, until the Commission establishes a
lawful disclosure regime, and restricting the scope and content
of the subpoena in other ways. See id. at 35-43, J.A. 40-48.
Venetian is particularly concerned that “EEOC’s refusal to
maintain as confidential any data provided [by it] . . . will enable
labor organizations and competitors to obtain data and
information to which they have no right, and which they have
not otherwise been able to obtain, so that they can use such
information, to the detriment of [Venetian] and its employees,
8
for purposes totally unrelated to EEOC’s enforcement of . . . the
ADEA.” Am. Compl. ¶ 6, J.A. 8-9.
EEOC moved to dismiss Venetian’s Amended Complaint,
arguing, inter alia, that the case was not ripe for review.
Venetian opposed the motion and appended to its opposition a
declaration by Richard Rosenberg, one of its attorneys.
Rosenberg attested that Venetian has already submitted to
EEOC a position statement regarding the pending age
discrimination charges that “included confidential and
proprietary documents, and described internal processes of the
Venetian that are confidential and proprietary.” Rosenberg
Decl. ¶ 5, J.A. 75. EEOC filed responses, but refrained from
disputing any of Venetian’s allegations through declarations of
its own; its avowed strategy was to avoid turning the motion to
dismiss into a motion for summary judgment. See Def.’s Reply
to Pl.’s Opp’n to Def.’s Mot. To Dismiss at 2 n.1, reprinted in
J.A. 111, 112 (“Defendant does not attach a declaration
regarding the status of the charges . . . . Defendant wishes to
avoid any possibility that this [Motion To Dismiss] be converted
into a Motion for Summary Judgment.”).
The District Court granted EEOC’s motion to dismiss
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure on ripeness grounds. Because issuance of an
administrative subpoena, which the Commission lacks the power
to enforce, does not constitute final agency action, the court held
that Venetian’s challenges to the scope and content of the
subpoena were not ripe. See Venetian Casino Resort v. EEOC,
Civ. A. No. 00-02980, slip op. at 5-6 (D.D.C. Jan. 12, 2004)
(“Mem. Op.”), reprinted in J.A. 137, 141-42.
The court also held that Venetian’s claim “that information
already in possession of the EEOC will [unlawfully] be
released” was not ripe for review, because “[m]ere speculation
that the EEOC will disclose some of the limited information that
[Venetian] has already submitted is not enough to confer
9
ripeness.” Id. at 6-7, J.A. 142-43. The court concluded that
“plaintiff’s refusal to comply with the EEOC’s subpoena
suggests that the withheld information is the confidential
information that, if disclosed, could be harmful to the plaintiff”
and that plaintiff’s challenge would not ripen until “either when
the plaintiff can allege a specific incident of improper disclosure
of confidential information already submitted . . . [or] when the
EEOC attempts to enforce the subpoena in district court.” Id. at
8, J.A. 144.
II. ANALYSIS
In ascertaining whether a suit is ripe, courts must balance
the plaintiff’s interest in prompt consideration of allegedly
unlawful agency action against the agency’s interest in
crystallizing its policy before that policy is subjected to judicial
review and the court’s interests in avoiding unnecessary
adjudication and in deciding issues in a concrete setting. See
Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).
The framework for assessing ripeness was established in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), in which the
Supreme Court provided a two-pronged test that requires a
reviewing court to evaluate “both the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration.” Id. at 149. Under the “fitness of the
issues” prong, the first question for a reviewing court is
“whether the disputed claims raise purely legal questions and
would, therefore, be presumptively suitable for judicial review.”
Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 92 (D.C. Cir.
1986); see also Payne Enters., Inc. v. United States, 837 F.2d
486, 492 (D.C. Cir. 1988). Next, we consider whether the court
or the agency would benefit from postponing review until the
policy in question has sufficiently “crystallized” by taking on a
more definite form. See City of Houston v. Dep’t of Hous. &
Urban Dev., 24 F.3d 1421, 1430-31 (D.C. Cir. 1994). The
“hardship” prong of the Abbott Laboratories test is not an
10
independent requirement divorced from the consideration of the
institutional interests of the court and agency. See Payne, 837
F.2d at 493.
In determining whether the District Court properly granted
EEOC’s motion to dismiss on ripeness grounds, we “construe
the complaint liberally, granting plaintiff the benefit of all
inferences that can be derived from the facts alleged.” Barr v.
Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal
quotation marks omitted). In this case, Venetian has alleged that
EEOC follows a disclosure policy that authorizes the agency to
release information that has been provided to the Commission
by Venetian, which has been designated as confidential and
proprietary by Venetian, to persons such as charging parties or
third persons incident to the ongoing age discrimination
investigation, without notice to Venetian. On the facts alleged,
the question whether the purported disclosure policy is lawful is
plainly ripe for review.
The case is fit for review because it presents a clear-cut
legal question, i.e., whether the Commission’s disclosure policy
is inconsistent with the Trade Secrets Act, FOIA, or the APA.
Resolution of this question turns on an analysis of the pertinent
statutes and their construction by relevant case law. See Better
Gov’t Ass’n, 780 F.2d at 92. There is nothing to be gained by
deferring such considerations. The agency’s applicable Manual
and the Privacy Act System of Records that it incorporates are
in their final form and they were last revised years ago. See id.
at 93.
EEOC contends, however, that the case in not fit for review
because the agency’s position has yet to “‘crystallize[ ]’ through
implementation in a concrete factual setting.” Nuclear Energy
Inst. v. EPA, 373 F.3d 1251, 1313 (D.C. Cir. 2004) (per curiam).
According to EEOC, it is “incumbent on the Venetian to show
how the agency has used or imminently will use the policy and
so illuminate the consequences of the alleged dispute and
11
‘crystallize’ the legal issues.” Appellee’s Br. 24. The argument
is without merit. Venetian has illuminated the consequences of
the dispute by alleging that long-standing agency policy
authorizes EEOC to disclose documents that Venetian has
designated as confidential and proprietary to charging parties
and their representatives absent prior notice to Venetian. And
trial counsel for EEOC confirmed the agency’s position in the
concrete factual setting of this case. Before the District Court,
EEOC counsel acknowledged that the agency may, incident to
an investigation, disclose documents designated as confidential
without providing notice to the party that submitted those
documents. See Tr. of Mot. Hr’g (July 2, 2002) at 69-71, J.A.
133-35. The only factual development left is disclosure of
Venetian’s confidential materials without notice to Venetian,
which, of course, is precisely what Venetian is seeking to avoid.
This case is distinct from Nuclear Energy Institute, relied
upon by EEOC. In Nuclear Energy Institute, appellant
challenged an existing Final Environmental Impact Statement
(“FEIS”) which had been used to support recommendations of
a particular nuclear waste repository insofar as that same FEIS
might be adopted in the future to support a different agency
action, such as the selection of an alternative for transporting
waste to the site. Nuclear Energy Inst., 373 F.3d at 1312-13.
Because the Nuclear Regulatory Commission indicated that it
might supplement the FEIS or require such supplementation
prior to its use in other contexts, we concluded that “the relevant
agency positions have not yet ‘crystallized.’” Id. at 1313. Here,
in contrast, EEOC has said nothing to suggest that a procedural
or substantive evolution of its disclosure policy is pending or
expected. See Better Gov’t Ass’n, 780 F.2d at 93 (finding
interpretation of administrative guidelines fit for review where
agencies had said nothing to suggest that “further procedural or
substantive evolution is expected”).
12
Our recent decision in Electric Power Supply Ass’n v.
FERC, 391 F.3d 1255 (D.C. Cir. 2004), is precisely on point. In
Electric Power, a trade association representing participants in
the power industry claimed that Federal Energy Regulatory
Commission orders permitting certain ex parte communications
violated the Sunshine Act. Id. at 1257. We found the case ripe
for review, because it presented a “straightforward legal
question” – whether the agency rule was unlawful. Id. at 1262-
63. Whether such ex parte communications had already taken
place was immaterial to our analysis.
The hardship prong of the ripeness doctrine “is largely
irrelevant in cases, such as this one, in which neither the agency
nor the court have a significant interest in postponing review.”
Elec. Power, 391 F.3d at 1263. Regardless, it is clear that
disclosure, without notice, of documents that Venetian has
designated confidential and proprietary constitutes “a hardship
sufficient to outweigh any possible institutional interest in
deferring review.” Id. The disclosure policy bears directly on
whether Venetian will be notified prior to the release of
materials that it considers confidential and proprietary and,
consequently, whether Venetian will know to object to any such
impending disclosure before the agency acts to release
privileged material. In other words, Venetian alleges that the
disclosure policy denies purported statutory entitlements, i.e.,
notice and the opportunity to object prior to disclosure of its
trade secrets and/or confidential information. See Better Gov’t
Ass’n, 780 F.2d at 94-95.
Moreover, as Electric Power underscored, given that the
alleged disclosure policy deprives Venetian of notice that a
privileged document may be disclosed, it makes no sense to
defer judicial review until after EEOC has disclosed a document
containing a trade secret or other confidential information. “The
mere statement of the suggestion exposes its absurdity.” Elec.
Power, 391 F.3d at 1264.
13
EEOC disputes Venetian’s demonstrated hardship by
reading the operative complaint to plead that the Commission
has not yet obtained any sensitive documents from Venetian.
EEOC submits that allegations contained in the Rosenberg
declaration “change the factual underpinnings of the case” and
cannot be considered. See Appellee’s Br. 27-28. We disagree.
Although the amended complaint largely addresses
confidentiality concerns pertaining to the information that
EEOC currently seeks, it also appears to embrace the contention
that Venetian has provided the Commission with confidential
and proprietary information that pertains to EEOC’s
investigation of the age discrimination charges. See Am.
Compl. at 19, J.A. 24 (seeking “[o]rder enjoining the EEOC
from releasing any confidential information submitted by the
Venetian”); id. at 35, J.A. 40 (seeking order enjoining EEOC
from releasing “any of the documents and information furnished
by the Venetian” absent a FOIA request). In any event, the
undisputed Rosenberg declaration fortifies this reading. See
Rosenberg Decl. ¶ 5, J.A. 75 (“The position statements
[submitted to EEOC] included confidential and proprietary
documents, and described internal processes of the Venetian that
are confidential and proprietary.”). And given the present
posture of this case – a dismissal under Rule 12(b)(1) on
ripeness grounds – the court may consider materials outside the
pleadings. See EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 n.3 (D.C. Cir. 1997).
Alternatively, EEOC insists that, even in light of the
Rosenberg declaration, “the District Court was correct to
disbelieve the Venetian’s assertions and conclude instead . . .
that [Venetian], in fact, refused to turn over the sensitive
materials and so still retains them.” Appellee’s Br. 28. There is
no good reason to view Venetian’s undisputed assertions that it
has provided the Commission with confidential and proprietary
information as fanciful. Therefore, these factual allegations
cannot be simply “disbelieved” by the District Court. See
14
Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 871 (D.C. Cir.
2002); Barr, 370 F.3d at 1199.
Nor does standing present an independent jurisdictional
barrier. As EEOC itself recognizes, we need not analyze
standing separately because “it is clear that [any challenge to
Venetian’s standing] is not an independent issue from ripeness.”
Appellee’s Br. 33. Venetian has standing, because it has
demonstrated that there is a substantial probability that the
alleged disclosure policy will harm its concrete and
particularized interest in retaining the confidentiality of
protected information. See Elec. Power, 391 F.3d at 1261-62;
Better Gov’t Ass’n, 780 F.2d at 96 n.53.
In short, the question whether EEOC’s disclosure policy is
lawful presents a live and focused dispute emanating from
agency action that is both final and consequential to Venetian.
The question is clearly ripe for review. Because we conclude
that the question is ripe with respect to documents already in
EEOC’s hands, we need not consider whether it would be ripe
with respect to information that EEOC seeks but has not yet
obtained from Venetian. Finally, the District Court was clearly
correct to dismiss Venetian’s remaining claims challenging the
scope or content of the administrative subpoena. See FTC v.
Invention Submission Corp., 965 F.2d 1086, 1089 (D.C. Cir.
1992) (“The agency, in issuing a subpoena, has undertaken no
final administrative action; a subpoena becomes an appealable
final order only after the subpoenaed party refuses to comply
and the agency requests and receives judicial enforcement.”).
*****
As, noted above, the record of this case is deficient, in part
because the argument before the District Court was based on an
outdated version of the agency’s Manual and in part because the
Commission’s litigation position has been inconsistent. Before
the District Court, counsel for the Commission unequivocally
15
acknowledged that EEOC investigators could – as they saw fit
– disclose documents designated as confidential to a third party
in the course of an ADEA investigation, without notice to the
party that submitted that information. See Tr. of Mot. Hr’g (July
2, 2002) at 69-71, J.A. 133-35. This is precisely the practice
that Venetian contests. At the appellate argument, however,
counsel for EEOC appeared to suggest the contrary, i.e., that,
where the releasing party has indicated that documents are
confidential and proprietary, such information would not be
released in the course of an investigation, or in any other
context, absent prior notice to the party that submitted the
materials. See Recording of Oral Argument at 23:38-25:19,
26:29-:49. The problem, of course, is that when EEOC’s
counsel was pressed on the issue, he expressed uncertainty as to
his client’s position. See id. at 27:54-30:04. It also remains
unclear what the disputed provision in the revised Manual
means. See EEOC Compl. Man. § 83.1(a)(1) (BNA 2001). That
the Commission has failed to advance a consistent litigation
position obviously cannot render a longstanding rule, policy, or
practice by which it determines whether to disclose confidential
documents in its possession unfit for review. On remand, the
District Court’s first task will be to ascertain the contours of the
precise policy at issue. If Venetian’s allegations turn out to be
correct, the District Court must determine in the first instance
whether the policy is contrary to law.
III. CONCLUSION
We hereby remand the case to the District Court for further
proceedings consistent with this opinion.
So ordered.