United States v. Reid

United States Court of Appeals
For the First Circuit

No. 03-1159

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD C. REID,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, Chief U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.

Owen S. Walker, with whom Elizabeth L. Prevett and the Federal
Defender Office were on brief, for appellant.

Gary S. Katzmann, Assistant U.S. Attorney, with whom Michael
J. Sullivan, U.S. Attorney, Gerard T. Leone, Jr., First Assistant
U.S. Attorney, and Timothy Q. Feeley and Colin Owyang, Assistant
U.S. Attorneys, were on brief, for appellee.

May 27, 2004
 LYNCH, Circuit Judge. On December 22, 2001, Richard Reid

tried unsuccessfully to destroy American Airlines Flight 63 over

the Atlantic Ocean by detonating explosives hidden in his shoes.

The plane was diverted to Boston, where Reid was arrested. On

October 4, 2002, Reid pleaded guilty to eight terrorism-related

offenses,1 and on January 30, 2003, he was sentenced to serve the

remainder of his life in prison. At the sentencing hearing, Reid

declared his continuing allegiance to the terrorist Osama bin

Laden, adding: "I think I ought not apologize for my actions. I am

at war with your country . . . ." A few days later, Reid was

transferred from Massachusetts to a maximum security federal prison

in Florence, Colorado (ADX Florence), where he remains today.

This interlocutory appeal2 concerns the conditions of

Reid's pre-sentence confinement. Reid contends that the government

violated his First Amendment rights by restricting his access to

1
Reid pleaded guilty to attempted use of a weapon of mass
destruction, 18 U.S.C. § 2332a(a)(1); attempted homicide, 18 U.S.C.
§ 2332(b)(1); placing an explosive device on board an aircraft, 49
U.S.C. § 46505; attempted murder, 49 U.S.C. § 46506(1) and 18
U.S.C. § 1113; two counts of interfering with an airline flight
crew and attendants, 49 U.S.C. § 46504; attempted destruction of an
aircraft, 18 U.S.C. § 32(a); and using a destructive device during
and in relation to a crime of violence, 18 U.S.C. § 924(c). The
ninth count in the indictment -- attempted wrecking of a mass
transportation vehicle, 18 U.S.C. § 1993(a) -- was dismissed by the
district court. See United States v. Reid, 206 F. Supp. 2d 132,
142 (D. Mass. 2002).
2
Reid's challenge to his criminal conviction is the subject
of a separate appeal to this court. See United States v. Reid, No.
03-1198 (1st Cir. docketed Feb. 10, 2003).

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news media while he was detained in Massachusetts. As a federal

prisoner housed at the Massachusetts Correctional Institute at

Cedar Junction, Reid was permitted to use funds from his prison

account to purchase a subscription to Time magazine. Under a set

of "special administrative measures" imposed on Reid by the U.S.

Marshals Service (USMS) at the direction of the Attorney General,

an FBI special agent removed the "letters to the editor" section

from each issue of Time (the Time letters) before giving the

magazine to Reid. The special agent also clipped two articles

about terrorism from the magazine and withheld them from Reid.

Reid petitioned the district court for access to the withheld

material on First Amendment grounds. After a hearing on January

21, 2003, the district court denied Reid's request.

We conclude this appeal has been overtaken by changes in

the factual and legal circumstances of Reid's confinement.

Although there remains a substantial dispute between the parties

concerning Reid's access to Time, we nonetheless dismiss the appeal

under the branch of the mootness doctrine barring courts from

deciding a case when no practical consequences would flow from the

decision.

I.

A. Special Administrative Measures

Reid challenges the "special administrative measures"

(SAMs) that governed his confinement while in Massachusetts. The

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Attorney General's power to promulgate SAMs for individual

prisoners derives from 28 C.F.R. § 501.3 ("Prevention of acts of

violence and terrorism"). See Yousef v. Reno, 254 F.3d 1214, 1219

(10th Cir. 2001). That regulation permits the Attorney General,

who has plenary power over the management of federal prisons, see

18 U.S.C. § 4001(b), to impose on any individual prisoner "special

administrative measures that are reasonably necessary to protect

persons against the risk of death or serious bodily injury."

§ 501.3(a). To impose such SAMs, the Attorney General or the head

of any federal law enforcement or intelligence agency must certify

that, with respect to the prisoner in question,

there is a substantial risk that [the] prisoner's
communications or contacts with persons could result in
death or serious bodily injury to persons, or substantial
damage to property that would entail the risk of death or
serious bodily injury to persons.

Id. Once authorized, SAMs may impose restrictions on the inmate's

housing or privileges, including

correspondence, visiting, interviews with representatives
of the news media, and use of the telephone, as is
reasonably necessary to protect persons against the risk
of acts of violence or terrorism.

Id. The affected prisoner must be notified of the SAMs and the

basis for their imposition. § 501.3(b).

SAMs are not indefinite in duration. Before the

September 11, 2001 terrorist attacks, the risk assessment

underlying a set of SAMs was deemed valid for 120 days; when that

period expired, a new risk assessment had to be conducted before

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the SAMs could be reimposed. Yousef, 254 F.3d at 1219; United

States v. Johnson, 223 F.3d 665, 672 (7th Cir. 2000). After the

September 11 attacks, the Bureau of Prisons amended § 501.3 to

permit SAMs to remain in force for up to a full year with the

approval of the Attorney General. § 501.3(c); see 66 Fed. Reg.

55062, 55062 (Oct. 31, 2001). The agency justified the extension

by stating that the September 11 attacks had demonstrated "beyond

question" that some terrorist conspiracies "are carried out over a

long period--far in excess of 120 days." 66 Fed. Reg. at 55063.

Though a prisoner might have limited ability to assist such

efforts, the agency found, that fact "do[es] not diminish the

urgent need for law enforcement authorities to curb the inmate's

ability to participate in planning or facilitating those acts

through communications with others within or outside the detention

facility." Id.

B. SAMs Imposed on Reid

In February 2002, approximately two months after Flight

63 landed in Boston, the Attorney General authorized the USMS to

issue SAMs regulating Reid's pre-trial confinement. Cf. 28 C.F.R.

§ 501.3(f) (allowing branches of the Justice Department other than

the Bureau of Prisons to issue SAMs for persons in their custody).

After the district court objected to the initial version of Reid's

SAMs, see United States v. Reid, 214 F. Supp. 2d 84, 92 (D. Mass.

2002), a new version was issued on June 19, 2002. It was under the

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June 2002 SAMs that the USMS restricted Reid's access to Time

magazine.

The June 2002 SAMs purported to control all of Reid's

written and recorded communications, including his receipt of

written materials. Under the caption "Inmate Communications

Prohibitions," the document provided:

The inmate is prohibited from passing or receiving any
written or recorded communications to or from any other
inmate, visitor, or anyone else except as outlined and
allowed by this document.

The SAMs then set forth detailed rules governing Reid's access to

visitors, telephone calls, and legal, consular, and non-legal mail.

Reid's Time subscription qualified as incoming non-legal mail:

(Non-legal/Non-consular) Mail - Any mail not clearly and
properly addressed to/from the inmate's attorney and
marked privileged, or consular mail (incoming or
outgoing):

i. Copied - Shall be copied (including the surface of
the envelope) by the warden, or his/her designee,
of the facility in which the inmate is housed.

ii. Forwarded - Shall be forwarded, in copy form, to
the location designated by the FBI.

...

iv. Mail Seizure - If outgoing/incoming mail is
determined by USMS or FBI to contain overt or
covert discussions of or requests for illegal
activities, the soliciting or encouraging of acts
of violence or terrorism, or actual or attempted
circumvention of SAM, the mail shall not be
delivered/forwarded. The inmate shall be notified
in writing of the seizure of any mail.

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These were the only provisions in the June 2002 SAMs pertaining to

Reid's Time subscription.

C. Reid's Motions for Access to Time

Reid initially challenged these restrictions in June

2002, when he indicated his intent to subscribe to Time and filed

a motion to prevent the government from interfering with the

magazine's delivery. Because Reid had not yet subscribed to Time,

however, the district court denied the motion as not ripe.

Reid actually began subscribing to Time in September

2002. Initially, it appears, the magazine was delivered to him

complete and without undue delay. Then, on October 30, the

government informed defense counsel that it had removed an article

about terrorism from Reid's October 21, 2002 issue of Time under

the "Mail Seizure" provision of the SAMs. Reid tried to challenge

that decision through administrative channels, cf. 28 C.F.R.

§ 501.3(e) (providing that inmates subjected to SAMs may seek

review through an administrative process), but the government

successfully took the position that administrative remedies were

unavailable to Reid, apparently because he had not yet been

sentenced.

Reid responded by filing a renewed motion in the district

court to enjoin the government from interfering with his Time

subscription. He argued that government's censorship of his

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subscription violated his First Amendment rights. Reid also sought

permission to purchase a radio, which was prohibited by the SAMs.

The government defended the SAMs and their application to

Reid's Time subscription and radio request as reasonably necessary

for valid penological and national security purposes. The

government justified this argument in part by reference to

materials filed under seal. Certain outbound correspondence from

Reid had been seized during his confinement in Massachusetts. The

substance of that correspondence is not at issue in this case; the

government submitted it simply to substantiate its claim

(articulated in public) that Reid had indeed attempted to

communicate with others while in custody.3 The government also

emphasized that Reid is an admitted member of al Qaeda, a terrorist

organization that, according to the government, trains its members

to exploit "innocent-looking" communications to relay coded

messages to and from prison in the event of capture.

On January 2, 2003, the district court held a hearing on

Reid's motion. As to the radio, the motion was denied, and Reid

has not appealed that decision. As to Time magazine, the court

denied Reid's motion as moot after the government offered to give

3
This sealed correspondence has not been made public. The
news media did appear at the January 21, 2003 hearing and move for
access to the materials, and the district court required the
government to submit an affidavit to support its assertion that
national security considerations justified keeping the
correspondence under seal. That was done, and on January 28, 2003,
the district court denied the motion.

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Reid the only two Time articles it had yet seized under the SAMs.4

The court agreed to be available on short notice if the government

further interfered with Reid's access to the magazine.

Approximately one week later, Reid filed another motion

concerning his Time subscription. He explained that the government

had informed him after the January 2 hearing that (1) all further

issues of Time magazine would be held by the USMS for thirty days

before delivery, with the possibility that some terrorism-related

materials would be withheld longer or even permanently, and that

(2) all letters to the editor would be removed and withheld

permanently. He again sought to enjoin the government from

interfering with the complete and prompt delivery of the magazine.

A new hearing was scheduled for January 21. The

government told the district court that withholding the Time

letters was necessary to ensure that Time did not unwittingly

become a vehicle for al Qaeda agents to convey coded messages to

Reid in prison. The defense attacked that argument, pointing out

that Time publishes only 2-3% of the letters it receives and that

4
The first article that the government seized was from the
October 21, 2002 issue of Time. Entitled "Al-Qaeda: Alive and
Starting to Kick Again," it described statements by Osama bin Laden
and Ayman al-Zawahiri that were broadcast in early October 2002 on
the al-Jazeera television network. The second, entitled "Why Can't
We Find Bin Laden?," appeared in the November 25, 2002 issue of
Time. That article, too, discussed a recorded statement issued by
bin Laden. The government voluntarily gave both articles to Reid
after the January 2, 2003 hearing, saying that delaying Reid's
access to that material for thirty days was sufficient for the
government's purposes.

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those letters are subject to fact-checking and other editorial

control. The government responded that deleting the letters was a

reasonable exercise of penological discretion under the SAMs

because coded messages in the letters -- the possibility of which,

the government said, could not be ruled out completely -- might

provoke "outbursts" by Reid and might enable him to continue his

criminal activities through outgoing correspondence.

The district court expressed some skepticism about the

government's argument, observing:

Mr. Reid is a very tall individual. But he's not ten
feet tall. And this constant reiteration of we've got to
keep data away from him, we've got to keep his data out
of the hands of the public lest disaster befall,
respectfully, is wearing a bit thin.

Nevertheless, the court denied Reid's motion on the ground that the

SAMs permitted the restriction:

I don't see any right that [Reid] has articulated to
receive Time Magazine that would overcome the appropriate
general concerns set forth in the SAMs. I've respected
the SAMs throughout. . . . And while I see nothing wrong
with letting him have Time Magazine . . . I see no right
for him to have Time Magazine.

The court added that it was persuaded to rule for the government in

part because of Reid's "ongoing intent" to harm the United States:

"I make no bones about that. This man shows an ongoing intent of

hostility to the United States and I, I have that very much in

mind."

Reid filed this interlocutory appeal on January 27, 2003.

Three days later, on January 30, Reid was sentenced to life in

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prison, and on the following day he was committed to the custody of

the Bureau of Prisons (BOP). On February 4, 2003, the BOP

transferred Reid from Massachusetts to ADX Florence, the maximum

security facility in Colorado where he will serve his sentence.

II.

On appeal, Reid asks this court to decide three

questions: (i) whether the June 2002 SAMs were procedurally

invalid; (ii) whether those SAMs were unconstitutionally overbroad

under the First Amendment; and (iii) whether the USMS's withholding

of the Time letters under the June 2002 SAMs violated Reid's First

Amendment rights. The government defends the SAMs but also urges

dismissal on a variety of grounds, including (1) that this court

lacks appellate jurisdiction over Reid's interlocutory appeal, and

(2) that this appeal has been mooted by events after the district

court denied Reid's motion, including the expiration of the June

2002 SAMs and Reid's February 2003 transfer to ADX Florence.

For the reasons explained below, we conclude that Reid's

appeal to this court is moot. Accordingly, we do not reach the

government's challenge to our appellate jurisdiction. See Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999) (jurisdictional

issues may be addressed in any sequence); cf. Arizonans for

Official English v. Arizona, 520 U.S. 43, 66-67 (1997) (court may

assume without deciding that standing exists in order to analyze

mootness).

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 Article III prohibits federal courts from deciding "moot"

cases or controversies –- that is, those in which "the issues

presented are no longer 'live' or the parties lack a legally

cognizable interest in the outcome." United States Parole Comm'n

v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack,

395 U.S. 486, 496 (1969)); Gulf of Maine Fishermen's Alliance v.

Daley, 292 F.3d 84, 87 (1st Cir. 2002). Mootness problems may

arise at any point in a proceeding. "Even if an actual case or

controversy exists at the inception of litigation, a case may be

rendered moot (and, therefore, subject to dismissal) if changed

circumstances eliminate any possibility of effectual relief." Me.

Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 17 (1st Cir.

2003); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir.

2003). That is because, under Article III, federal courts have no

authority to decide questions that cannot affect the rights of the

litigants before them. Lewis v. Continental Bank Corp., 494 U.S.

472, 477 (1990) (citing North Carolina v. Rice, 404 U.S. 244, 246

(1971)).

In lay terms, we recognize, it might be somewhat odd to

describe Reid's claims in this case as "moot." Without a doubt,

there is a substantial and continuing dispute between Reid and the

government concerning his access to Time magazine. The government

still has not turned over the Time letters that it seized; Reid

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still demands access to those letters. In that pragmatic sense,

the controversy remains "live" and the parties adverse.

The problem is that even if this court decided the

questions raised in Reid's appeal, the pragmatic dispute between

the parties would be unaffected. That is because the factual and

legal circumstances surrounding Reid's case have changed so

dramatically that Reid no longer asserts an injury that is "likely

to be redressed by a favorable judicial decision" in this

proceeding. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis,

494 U.S. at 477). Any opinion on the merits of Reid's appeal to

this court would be merely advisory. Accordingly, we have no

choice but to dismiss the case as moot. See Mangual, 317 F.3d at

60 ("If events have transpired to render a court opinion merely

advisory, Article III considerations require dismissal of the

case.").

We reach this conclusion for several reasons. First, the

June 2002 SAMs -- the regulations that Reid challenges on

constitutional and procedural grounds -- are no longer in effect.

By regulation, those SAMs expired on June 19, 2003, one year after

their adoption. See 28 C.F.R. § 501.3(c). No interest of Reid's

would be served by invalidating them now: the June 2002 SAMs no

longer determine his conditions of confinement, and there is no

claim for damages (actual or nominal) for Reid's alleged

deprivations while those SAMs were still in effect. Cf. Mr. & Mrs.

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R., 321 F.3d at 17 (changed circumstances do not moot claims for

money damages). As we observed in the Daley case, which similarly

involved an attack on a regulation that expired while the

litigation was pending, "[t]his court has no means of redressing

either procedural failures or substantive deficiencies associated

with a regulation that is now defunct." 292 F.3d at 88.

Moreover, the BOP has imposed on Reid a new set of SAMs,

effective August 14, 2003, at the ADX Florence facility in Colorado

(the Colorado SAMs). Unlike the June 2002 SAMs, the Colorado SAMs

contain provisions specifically regulating Reid's access to the

mass media. The Time letters initially seized by the USMS in

Massachusetts have been forwarded to ADX Florence, where the FBI

has seized them anew under the mass media provisions of the

Colorado SAMs.5 As a result, even an order from this court finding

5
In relevant part, the SAMs governing Reid's confinement at
ADX Florence provide:

Access to Mass Communications:
To prevent the inmate from receiving and acting upon
critically-timed information or information coded in a
potentially undetectable manner, the inmate's access to
materials of mass communication is restricted as follows:

a. Periodicals/Newspapers -
...
ii. Sections of the periodical/newspaper which
offer a forum for information to be passed by
unknown and/or unverified individuals,
including but not limited to classified
advertisements and letters to the editor,
should be removed from the
periodicals/newspapers prior to distribution
to the inmate.

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that the June 2002 SAMs were unconstitutional would not result in

Reid's recovery of the seized Time letters. The Colorado SAMs --

the only basis for the government's continued withholding of the

Time letters -- are not before us.

Nor has Reid articulated any persuasive reason why this

court should decide his appeal notwithstanding the expiration of

the June 2002 SAMs and his transfer to ADX Florence. This is not

a case involving a defendant's property interest in something taken

by the government -- defense counsel made clear at oral argument

that Reid is not interested in an order declaring that the Time

letters are his property and must be returned to his family or to

his lawyer. Cf. Fed. R. Crim. P. 41(g) (authorizing motions for

the return of seized property).

Rather, Reid contends that this appeal is not moot

because a judgment from this court would assist him in future

litigation against BOP officials in Colorado. We disagree. This

is not an appeal in a civil case; it is an interlocutory appeal

from the denial of a motion in a criminal prosecution. If Reid

were to prevail, his remedy would be simply the reversal of the

district court's January 21, 2003 order. Plainly, the Colorado

SAMs would not be affected by our reversal of that order, which was

predicated on the now-expired June 2002 SAMs and which the district

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court itself did not believe would apply beyond the date of

sentencing.6

Even aside from the question of available remedies, a

victory for Reid in this appeal would not meaningfully assist him

in challenging the conditions of his confinement at ADX Florence.7

His procedural challenge to the June 2002 SAMs obviously has no

bearing on the validity of the Colorado SAMs, which were separately

promulgated. Likewise, even if Reid were to prevail in his

substantive overbreadth challenge to the June 2002 SAMs, that would

not determine the constitutionality of the Colorado SAMs. Reid's

overbreadth argument is framed in terms of executive discretion:

he says that mail seizure provisions of the June 2002 SAMs gave the

USMS too much discretion to censor constitutionally protected

speech. Unlike the June 2002 SAMs, however, the Colorado SAMs

expressly cabin the discretion of prison officials to deny Reid

6
During the January 21, 2003 hearing, the district court
recognized its limited ability to affect Reid's access to Time
magazine after sentencing: "Understand that at most I'm thinking
of the time between now and the imposition of sentence. . . . Once
he's sentenced I think that I would have little, if anything, to
say about it. But in the interim maybe I have something to say."
7
Of course, a favorable decision of any kind by this court
might be useful to Reid for its precedential value, but the mere
desire for a favorable precedent is not sufficient to prevent a
case from becoming moot. Bd. of Educ. v. Ill. State Bd. of Educ.,
79 F.3d 654, 659 (7th Cir. 1996); United States v. Fischer, 833
F.2d 647, 649 (7th Cir. 1987).

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access to most mass media.8 So in any overbreadth attack on the

Colorado SAMs, the judicial inquiry will be materially different.

Nor would a victory for Reid in his as-applied challenge

to the June 2002 SAMs likely bear fruit in Colorado. That is

because the relevant legal question in any such First Amendment

challenge is whether the restrictions imposed are "reasonably

related to legitimate penological interests" under the

circumstances. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)

(quoting Turner v. Safely, 482 U.S. 78, 89 (1987)). If challenged,

the reasonableness of the Colorado SAMs would be evaluated against

the background of Reid's final conviction and sentence, not to

mention the grave security considerations that attend the BOP's

management of one of the nation's highest security prison

facilities.9 See id. at 418 (one factor in evaluating the

reasonableness of a prison restriction on incoming publications is

the effect that accommodating the asserted constitutional right

would have on order and security in the prison). A judgment from

this court invalidating the June 2002 SAMs, which were adopted in

8
The Colorado SAMs ensure Reid access to any "publications
determined not to facilitate criminal activity or be detrimental to
national security; the security, good order or discipline of the
institution; or the protection of the public."
9
As the government noted at oral argument, Reid is not the
only convicted terrorist held at ADX Florence. See, e.g., Yousef
v. Reno, 254 F.3d 1214, 1216-17 (10th Cir. 2001).

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very different circumstances, would not significantly assist that

inquiry.

Nor does Reid's appeal come under the exception to the

mootness doctrine for cases "capable of repetition, yet evading

review." S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514 (1911).

That doctrine applies only where two circumstances are present:

"(1) the challenged action [is] in its duration too short to be

fully litigated prior to cessation or expiration, and (2) there

[is] a reasonable expectation that the same complaining party

[will] be subject to the same action again." Spencer, 523 U.S. at

17 (quoting Lewis, 494 U.S. at 481); see also Daley, 292 F.3d at

88-89.

If the problem in this case were simply that the one-year

duration of the SAMs frustrated Reid's ability to obtain judicial

review, the capable-of-repetition exception might apply.10 But that

is not the situation here. The Colorado SAMs are not the "same

action" as the June 2002 SAMs; on the contrary, they impose

substantively different restrictions and reflect new factual

developments (i.e., Reid's conviction, sentencing, and transfer to

a different prison facility). The June 2002 SAMs themselves are

not reasonably likely to be repeated. Under these circumstances,

10
But see Gulf of Maine Fishermen's Alliance v. Daley, 292
F.3d 84, 89 (1st Cir. 2002) (plaintiff failed to show that fishing
regulations, though effective for only one year, could not be fully
litigated within that time frame).

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the capable-of-repetition exception is unavailable. See Daley, 292

F.3d at 90 (new regulation was not the "same action" for purposes

of the capable-of-repetition doctrine because the new regulation

was different in scope and based on new factual developments).

In sum, the factual and legal boundaries of the parties'

dispute have changed so completely since the district court's

January 21, 2003 order that any decision by this court on the

issues raised in Reid's appeal would be essentially irrelevant.

Reid may still be aggrieved by the government's conduct, but as to

the district court order that is the subject of this appeal, Reid

lacks "a particularized, concrete stake that would be affected by

our judgment." Lewis, 494 U.S. at 479. Accordingly, this appeal

is moot and must be dismissed. See id.; Mangual, 317 F.3d at 60;

Daley, 292 F.3d at 88.

If Reid still wishes to challenge the government's

continued withholding of the Time letters, he may do so by whatever

procedures are available to him in Colorado, including any required

administrative review. Cf. 42 U.S.C. § 1997e(a); 28 C.F.R.

§ 501.3(e). Although Reid has expressed concern that the outcome

of the present litigation may somehow prejudice him should he

choose to file a new action in Colorado, we see no prejudice. Our

mootness holding depends on our conclusion that the June 2002 SAMs

have expired and have no continuing effect. And to ensure that

Reid suffers no adverse consequences from the district court's

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January 21, 2003 order, we will vacate it. See United States v.

Munsingwear, Inc., 340 U.S. 36, 39-41 (1950) (noting that the

standard practice in cases that become moot on appeal is to vacate

the judgment below).

III.

The appeal is dismissed and the district court order

below is vacated. So ordered.

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