Chemical Producers v. Syngenta Crop , 463 F.3d 871 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEMICAL PRODUCERS AND 
DISTRIBUTORS ASSOCIATION,
Plaintiff-Appellant,
v.
PAUL E. HELLIKER, Director of the
California Department of Pesticide
Regulation, No. 04-56318
Defendant-Appellee,
 D.C. No.
CV-02-09781-AHM
and
SYNGENTA CROP PROTECTION, INC.; OPINION
DOW AGROSCIENCES LLC; BASF
CORPORATION; BAYER CROPSCIENCE
LP; DU PONT DE NEMOURS AND
COMPANY; MONSANTO COMPANY,
Defendants-Intervenors-
Appellees.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
May 4, 2006—Pasadena, California
Filed August 31, 2006
Before: Michael Daly Hawkins and Richard A. Paez,
Circuit Judges, and Neil V. Wake,* District Judge.
*The Honorable Neil V. Wake, United States District Judge for the Dis-
trict of Arizona, sitting by designation.
10615
10616 CHEMICAL PRODUCERS v. SYNGENTA CROP
Opinion by Judge Wake
10618 CHEMICAL PRODUCERS v. SYNGENTA CROP
COUNSEL
David H. Bamberger, DLA Piper Rudnick Gray Cary US
LLP, Washington, D.C., for the plaintiff-appellant.
Stanley W. Landfair and Lawrence S. Ebner, McKenna Long
& Aldridge LLP, Los Angeles, California, for the defendants-
intervenors-appellees.
CHEMICAL PRODUCERS v. SYNGENTA CROP 10619
OPINION
WAKE, District Judge:
We must decide whether intervening amendments to Cali-
fornia’s pesticide registration laws, which were challenged
and upheld below, render this appeal moot. We hold they do.
Because the amendments cannot be attributed to the voluntary
conduct of the party seeking relief from the judgment, we
vacate the district court’s judgment.
I. Federal and California Pesticide Regulation
Under the Federal Insecticide, Fungicide, and Rodenticide
Act, 7 U.S.C. §§ 136 to 136y (“FIFRA”), all pesticides must
be registered with the Environmental Protection Agency
before being sold or distributed. 7 U.S.C. § 136a(a). Pesti-
cides also must be registered with California’s Department of
Pesticide Regulation (“the Department”) to be sold in Califor-
nia. Cal. Food & Agric. Code § 12811 (Deering 2006). Both
the California and federal registration laws require prospec-
tive sellers to submit with their registration applications
extensive data on the health and environmental effects of their
pesticides. Because the testing required to produce such data
is costly, applicants seeking to register pesticides with the
same active ingredients as previously registered pesticides
have incentive to acquire and use data submitted by prior reg-
istrants.
FIFRA’s rules relating to re-use of data by secondary regis-
tration applicants fall into time periods beginning on the date
the data were originally submitted. Original registrants are
entitled to exclusive control over the data submitted with their
application for ten years following their registration. 7 U.S.C.
§ 136a(c)(1)(F)(i). During the ten-year period, secondary reg-
istrants may use such data only if they obtain written consent
from the original registrant, i.e., a “letter of authorization.”
The exclusive control afforded to original registrants during
10620 CHEMICAL PRODUCERS v. SYNGENTA CROP
this period allows them to deny use of their data to others or
to set their own prices for letters of authorization. After this
ten-year period is a five-year “mandatory data-licensing”
period. During the five years, secondary applicants may rely
on previously filed data without permission from the original
submitter but “only if the applicant has made an offer to com-
pensate the original data submitter and submitted such offer
to the Administrator [of the Environmental Protection
Agency] accompanied by evidence of delivery to the original
data submitter of the offer.” Id. at 136a(c)(1)(F)(iii). If the
original data submitter deems the offer unsatisfactory, the
amount of compensation is fixed through binding arbitration.
Id. Arbitrated pricing during this mandatory-licensing period
replaces the original submitter’s previous power unilaterally
to dictate the price secondary applicants must pay to use the
data. Disagreement between the original submitter and a new
applicant, moreover, will not delay the new applicant’s regis-
tration. Id. After expiration of the five-year mandatory data-
licensing period, the data become freely available for use by
secondary applicants. Id. at 136a(c)(1)(F)(iv).
When this case began, California required secondary appli-
cants to obtain letters of authorization from original data sub-
mitters when federal law did not. While federal law provides
only a ten-year period of exclusive use to original submitters,
California law granted them exclusive use in perpetuity. Cal.
Food & Agric. Code § 12811.5 (Deering 2004). Before its
amendment, section 12811.5 read:
Except as provided in Section 13128, data, other
than public literature, previously submitted to the
director or the Administrator of the United States
Environmental Protection Agency to support an
application for the original registration of a pesticide,
or to support an application for an amendment
adding any new use to that registration and that per-
tains solely to that use, shall not, without the written
permission of the original data submitter, or its
CHEMICAL PRODUCERS v. SYNGENTA CROP 10621
assigns or successors in interest, be considered by
the director to support an application by another
person.
Id. (emphasis added); see also Cal. Code Regs. tit. 3,
§ 6170(c) (Barclay 2004). Thus, in California a secondary
applicant could never use previously submitted data without
permission from the original submitter, who could hold out
for any price or refuse authorization altogether.
Chemical Producers and Distributors Association (“the
Association”), a trade organization of manufacturers and sell-
ers of generic pesticides, brought this action against Paul Hel-
liker, Director of the Department, challenging California’s
longer exclusive use period. The complaint sought an injunc-
tion and a declaration that the California statute was pre-
empted “to the extent that [it] purport[s] to grant data
submitters in California exclusive use rights to data that were
previously submitted to EPA and are subject to FIFRA’s man-
datory data-licensing scheme.”
The Director declined to defend the law he was charged
with enforcing. However, Syngenta Crop Protection, Inc.,
Dow Agrosciences L.L.C., B.A.S.F. Corporation, Bayer
Cropscience L.P., E.I. Du Pont De Nemours and Company,
and Monsanto Company (“Intervenors”) intervened as defen-
dants in support of the California statute and regulations. The
district court granted summary judgment for the Intervenors
and the Director, finding the state statute and regulations not
preempted. Chem. Producers & Distrib. Ass’n v. Helliker,
319 F. Supp. 2d 1116 (C.D. Cal. 2004). The Association
appealed.
While the appeal was pending, California enacted amend-
ments to its pesticide registration law, effective January 1,
2006. The amended statute eliminates any state law period of
exclusive use by the original data submitter. Instead, Califor-
nia now allows mandatory data-licensing at arbitrated prices
10622 CHEMICAL PRODUCERS v. SYNGENTA CROP
from the outset for secondary users, although a new applicant
may obtain a letter of authorization if the original data submit-
ter is willing. Alternatively, a new applicant may (1) formu-
late or obtain its product from a source that has data
authorization from the data owner or (2) formulate or obtain
its product from a source that has irrevocably offered to pay
the data owner a share of the cost of producing the data. Cal.
Food & Agric. Code §§ 12811.5(a) & (c) (Deering 2006).
Like FIFRA, the new law provides for arbitration where an
irrevocable offer to pay is made but price is not agreed upon,
and a secondary applicant’s registration will not be delayed
by the dispute. Id. at § 12811.5(d). As in FIFRA, data may be
used by secondary registrants without compensation to the
original submitter after a certain period. Id. at § 12811.5(a).
In FIFRA that period is fifteen years, and under the amended
California law it is fifteen years for data submitted after
August 1, 2005, and seventeen years for data submitted before
that date. Id. at § 12811.5(a)(3).
In summary, although the new California law does not rep-
licate FIFRA’s first ten-year period of original submitters’
exclusive entitlement to their data, original submitters still
have that exclusivity, even in California, by force of FIFRA’s
terms. The former California law’s extension of the exclusive
use period beyond FIFRA’s ten years is abolished. In no cir-
cumstance does the California law now give original submit-
ters exclusive right to their data for California registration
purposes when FIFRA subjects those data to mandatory
licensing at arbitrated prices.
In light of the amendments, the Association suggests its
appeal is moot and moves for vacatur of the lower court’s
judgment. Intervenors contest both mootness and vacatur.
II. Mootness
[1] “Where intervening legislation has settled a controversy
involving only injunctive or declaratory relief, the controversy
CHEMICAL PRODUCERS v. SYNGENTA CROP 10623
has become moot.” Bunker Ltd. P’ship v. United States, 820
F.2d 308, 311 (9th Cir. 1987) (citations omitted). Here the
Association sought only injunctive and declaratory relief. We
therefore must decide whether California’s amended statute
has settled the Association’s controversy.
A. Statutory Amendment as Settling the Controversy
[2] The test for whether intervening legislation has settled
a controversy involving only declaratory or injunctive relief
is “whether the new [law] is sufficiently similar to the
repealed [law] that it is permissible to say that the [govern-
ment’s] challenged conduct continues.” Ne. Fla. Chapter of
Associated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 662 n.3 (1993) (citations omitted). Where the
law has been “sufficiently altered so as to present a substan-
tially different controversy from the one the District Court
originally decided,” there is “no basis for concluding that the
challenged conduct [is] being repeated.” Id. (citations and
internal quotation marks omitted).
[3] In evaluating whether the government’s challenged con-
duct continues, the case or controversy giving rise to jurisdic-
tion is the touchstone. See id. at 662; Diffenderfer v. Cent.
Baptist Church of Miami, Inc., 404 U.S. 412, 414 (1972);
Nome Eskimo Cmty. v. Babbitt, 67 F.3d 813, 815 (9th Cir.
1995). In Northeastern Florida, for example, a trade associa-
tion representing mostly non-minority construction firms
sought an injunction and declaration that the city’s set-aside
program for minority businesses was unconstitutional. 508
U.S. at 658-59. Intervening amendments to the program did
not render the case moot:
The gravamen of petitioner’s complaint is that its
members are disadvantaged in their efforts to obtain
city contracts. The new ordinance may disadvantage
them to a lesser degree than the old one, but insofar
as it accords preferential treatment to black- and
10624 CHEMICAL PRODUCERS v. SYNGENTA CROP
female-owned contractors — and, in particular, inso-
far as its “Sheltered Market Plan” is a “set aside” by
another name — it disadvantages them in the same
fundamental way.
Id. at 662 (footnote omitted).
The same inquiry yielded the opposite answer in Diffender-
fer. 404 U.S. at 415. There the plaintiffs sought a declaratory
judgment striking down Florida’s tax exemption for church
property used primarily for commercial purposes. Id. at 412-
13. Although the trial court upheld the law, Florida amended
it while the case was on appeal. The new version exempted
church property from taxation “only if the property is used
predominantly for religious purposes and only to the extent of
the ratio that such predominant use bears to the non-exempt
use.” Id. at 413-14 (citations and internal quotation marks
omitted). The “crux” of plaintiff’s complaint was the uncon-
stitutionality of “state aid in the form of a tax exemption for
church property used primarily for commercial purposes.” Id.
at 413. The case was mooted because the church parking lot
that was the “subject of the . . . complaint” was no longer
exempt beyond the extent of its church use. Id. at 414-15.
[4] Here the case or controversy the Association posed was
that its member-companies were “directly and adversely
affected by the letter of authorization requirement” in their
attempts to register generic pesticides in California. The
Association’s grievance over the letter of authorization
requirement in the former section 12811.5, which effectuated
exclusive use rights for original submitters in perpetuity, was
the “crux,” the “gravamen,” and indeed the only grievance, of
the complaint. The new statute has resolved that grievance.
The member-companies of the Association are no longer
affected by the letter of authorization requirement in the way
contested by the Association. Although a letter of authoriza-
tion remains one avenue for generic pesticide companies to
secure the use of previously filed data, it is only an alternative
CHEMICAL PRODUCERS v. SYNGENTA CROP 10625
to other avenues, including mandatory licensing at arbitrated
prices. The new statute accords letters of authorization a role
no larger than they play in FIFRA, which is everything the
Association hoped to achieve by this action.1
[5] Intervenors’ search for life in this case looks to a sav-
ings clause in the new section 12811.5 concerning future
adjudications of the lawfulness of existing registrations. That
provision, subdivision 12811.5(j), states: “No cost sharing as
provided in subdivisions (a), (b), and (c) shall be required to
support an application for annual renewal of pesticide product
registration, provided this provision shall not authorize
renewal of a product registered prior to the effective date of
this section if that registration is declared to have been unlaw-
fully issued by a court of competent jurisdiction.” The “cost
sharing” of subdivisions (a), (b), and (c) refers to the manda-
tory data licensing and compensation. Some registrations pre-
viously granted have been challenged in the state courts. See,
e.g., Syngenta Crop Prot., Inc. v. Helliker, 138 Cal. App. 4th
1135, 42 Cal. Rptr. 3d 191 (2006).
[6] Subdivision (j) plainly seeks to avoid inadvertently
redeeming registrations that were invalid when granted and
are so adjudicated in the future. Subdivision (j) states explic-
itly what the amendment as a whole would mean even without
subdivision (j): that the validity of prior registrations turns on
the law at the time and is not affected by the January 1, 2006
amendment.
1
The mandatory licensing terms of the new California statute differ
from those of FIFRA in one limited respect. For some data, the new Cali-
fornia law entitles original submitters to compensation at arbitrated prices
for two years longer than FIFRA. See Cal. Food & Agric. Code
§ 12811.5(a)(3) (Deering 2006). Intervenors rightly do not contend that
this difference affects mootness, for it is not relevant to the Association’s
sole challenge to the former California law’s grant of exclusive rights lon-
ger than those provided in FIFRA.
10626 CHEMICAL PRODUCERS v. SYNGENTA CROP
Intervenors argue that litigation of old registrations as con-
templated by subdivision (j) may occasion a decision on the
preemptive effect of FIFRA on the old statute. However,
Intervenors point to no litigation or actual controversy posing
that issue and do not sufficiently explain how FIFRA preemp-
tion of the former California statute would arise in litigation
over registrations that should not have been issued.
[7] In any event, any disputes regarding the unlawfulness
of registrations already issued are beyond the complaint in
this case. The Association’s sole challenge here is that FIFRA
preempts California’s former grant of exclusive use rights to
original submitters beyond the period such rights are provided
by FIFRA. This case involves no registration actually
obtained. Intervenors’ bare assertion that such litigation could
reach the issue decided below in this case is speculative and
falls far short of sustaining a case or controversy here. See
Hall v. Beals, 396 U.S. 45, 49-50 (1969) (holding that “specu-
lative contingencies afford no basis for our passing on the
substantive issues the appellants would have us decide with
respect to the now-amended law of Colorado” (citations omit-
ted)); Blair v. Shanahan, 38 F.3d 1514, 1519 (9th Cir. 1994)
(“[N]either we, nor the Supreme Court, have ever allowed
plaintiffs to challenge a statute unless the plaintiffs had an
actual and well founded fear that the law will be enforced
against them.” (citations and internal quotation marks omit-
ted)).
B. Statutory Amendment as Voluntary Cessation
[8] Intervenors argue, the statutory amendment notwith-
standing, that the voluntary cessation exception to mootness
applies. Under that doctrine, a “defendant’s voluntary cessa-
tion of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice.” City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982);
accord Ne. Florida, 508 U.S. at 661-62. If it were otherwise,
“the defendant’s mere voluntary cessation would compel the
CHEMICAL PRODUCERS v. SYNGENTA CROP 10627
courts to leave the defendant free to return to his old ways.”
Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1194 (9th
Cir. 2000) (citations, alterations and internal quotation marks
omitted); accord City of Mesquite, 455 U.S. at 289 n.10.
Intervenors draw comfort from general language in some of
our cases. “Our circuit, perhaps following the lead of the
Supreme Court, has issued somewhat confused pronounce-
ments regarding mootness generally, and mootness in the con-
text of repealed or amended statutes in particular.” Jacobus v.
Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003). As we noted in
Jacobus, sometimes we have said that “if a challenged law is
repealed or expires, the case becomes moot,” id. (citing Smith,
233 F.3d at 1195, Native Vill. of Noatak v. Blatchford, 38
F.3d 1505, 1510 (9th Cir. 1994), and Barilla v. Ervin, 886
F.2d 1514, 1521 (9th Cir. 1989), overruled on other grounds
by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th
Cir. 1996)), and at other times we have said that repeal or
amendment “does not deprive a federal court of its power to
determine the legality of the practice.” 338 F.3d at 1103 (cit-
ing Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th
Cir. 1985), and City of Mesquite, 455 U.S. at 289) (internal
quotation marks omitted).
The confusion in our pronouncements diminishes if our
cases are examined on their facts. The cases we cited in Jaco-
bus for a near categorical rule of mootness are cases of statu-
tory amendment. The examples we cited of continuing federal
adjudicatory power are of local government or administrative
agency repeal or amendment. Some of our pronouncements
were in cases that were not moot. E.g., Jacobus, 338 F.3d at
1104; Carreras, 768 F.2d at 1047; see also City of Mesquite,
455 U.S. at 289 & n. 11 (amending authority announced its
intention to reenact); Coral Constr. Co. v. King County, 941
F.2d 910, 927 (9th Cir. 1991) (remanded to determine
whether amended ordinance mooted the case).
[9] The voluntary cessation doctrine comes into play in
diverse circumstances, so sometimes our pronouncements
10628 CHEMICAL PRODUCERS v. SYNGENTA CROP
have been general. Nevertheless, we have been clear in refin-
ing the voluntary cessation exception for state legislative
enactments that otherwise moot a controversy. In that circum-
stance the exception is narrow:
A statutory change . . . is usually enough to render
a case moot, even if the legislature possesses the
power to reenact the statute after the lawsuit is dis-
missed. As a general rule, if a challenged law is
repealed or expires, the case becomes moot. The
exceptions to this general line of holdings are rare
and typically involve situations where it is virtually
certain that the repealed law will be reenacted.
Native Vill. of Noatak, 38 F.3d at 1510 (emphasis added; cita-
tions omitted); accord Smith, 233 F.3d at 1195; see also Bari-
lla, 886 F.2d at 1521 (rejecting appellant’s voluntary
cessation argument where there was no indication that the
state legislature intended to repeal the statutory amendments).
[10] This is not one of those rare cases in which it is “virtu-
ally certain that the repealed law will be reenacted.” Village
of Noatak, 38 F.3d at 1510. Indeed, there is no reason to think
the California legislature enacted the amendment with a mind
to restoring the old law later. Nor is there any reason to think
the Association would seek its own harm by asking the legis-
lature to do so.
[11] Because the statutory amendment has settled this con-
troversy, this case is moot.
III. Vacatur
[12] In deciding whether to vacate a moot judgment, “the
principal condition to which we have looked is whether the
party seeking relief from the judgment below caused the
mootness by voluntary action.” U.S. Bancorp Mortgage Co.
v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994) (citations omit-
CHEMICAL PRODUCERS v. SYNGENTA CROP 10629
ted). In this circuit, causation of mootness is a threshold ques-
tion. Where mootness was caused by “voluntary action” of the
party seeking vacatur, “we generally remand with instructions
to the district court to weigh the equities and determine
whether it should vacate its own judgment.” Mayfield v. Dal-
ton, 109 F.3d 1423, 1427 (9th Cir. 1997); accord Cammer-
meyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996); Dilley v.
Gunn, 64 F.3d 1365, 1370-71 (9th Cir. 1995). Where moot-
ness was caused not by the “voluntary action” of the party
seeking vacatur but by “happenstance” or the “vagaries of cir-
cumstance,” we direct vacatur. Doe v. Madison Sch. Dist. No.
321, 177 F.3d 789, 799 (9th Cir. 1999) (en banc); see also
Pub. Utils. Comm’n v. FERC, 100 F.3d 1451, 1460-61 (9th
Cir. 1996); Mayfield, 109 F.3d at 1427. When we cannot by
resort to the factual record determine whether mootness was
caused by the voluntary action of the party seeking vacatur,
this threshold question too is left to the district court. See Dil-
ley, 64 F.3d at 1371.
Intervenors argue that the Association’s advocacy before
the California Legislature voluntarily mooted this case, thus
precluding vacatur by this court. The Association sent letters
to every member of the Senate Committee on Environmental
Quality and the Assembly Committee on Agriculture urging
passage of the bill that would eliminate the letter of authoriza-
tion requirement. An Association delegation also discussed
the issue with the Assembly.
[13] Lobbying Congress or a state legislature cannot be
viewed as “causing” subsequent legislation for purposes of
the vacatur inquiry. Attributing the actions of a legislature to
third parties rather than to the legislature itself is of dubious
legitimacy, and the cases uniformly decline to do so. Even
where new legislation moots the executive branch’s appeal of
an adverse judgment, the new legislation is not attributed to
the executive branch. See Khodara Envtl., Inc. ex rel Eagle
Envtl., L.P. v. Beckman, 237 F.3d 186, 194-95 (3d Cir. 2001)
(stating that the U.S. Bancorp presumption against vacatur
10630 CHEMICAL PRODUCERS v. SYNGENTA CROP
applies “when mootness results from the voluntary action of
the party seeking relief from the judgment below,” but declin-
ing to apply the presumption where a federal agency’s appeal
was mooted by congressional action); Valero Terrestrial
Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000) (“In this
case, the mootness was, as noted, caused by the state legisla-
ture’s amendment of statutory provisions that it had earlier
enacted, and not by the actions of the defendants before this
court, all of whom are state executive officials, none of whom
is the Governor. Therefore, defendant state executive officials
are in a position akin to a party who finds its case mooted by
‘happenstance,’ rather than events within its control.” (cita-
tions, alterations and internal quotation marks omitted)); Nat’l
Black Police Ass’n v. District of Columbia, 108 F.3d 346,
351-52 (D.C. Cir. 1997) (vacating judgment when the District
of Columbia’s appeal was mooted by the District of Colum-
bia’s legislative action); Am. Library Ass’n v. Barr, 956 F.2d
1178, 1187 (D.C. Cir. 1992) (finding the duty to vacate was
“certain” where executive branch officials lost below and
Congress amended the statute); see also U.S. Bancorp, 513
U.S. at 25 n.3 (noting the “implicit conclusion” in United
States v. Munsingwear, 340 U.S. 36 (1950), that the “repeal
of administrative regulations cannot fairly be attributed to the
Executive Branch when it litigates in the name of the United
States”); U.S. Dep’t of the Treasury v. Galioto, 477 U.S. 556,
559-60 (1986) (vacating for mootness the lower court’s judg-
ment that the federal firearms statutes were unconstitutional
because “Congress came to the conclusion, as a matter of leg-
islative policy, that the firearms statutes should be redrafted”).
The principle that legislation is attributed to the legislature
alone is inherent in our separation of powers. See Khodara,
237 F.3d at 195 (“Mindful of the fact that legislative actions
are presumptively legitimate, we are wary of impugning the
motivations that underlie a legislature’s actions.” (citations
and internal quotation marks omitted)); Nat’l Black Police
Ass’n, 108 F.3d at 352 (“The legislature may act out of rea-
sons totally independent of the pending lawsuit, or because
CHEMICAL PRODUCERS v. SYNGENTA CROP 10631
the lawsuit has convinced it that the existing law is flawed.”);
id. at 353 (“Separation of powers concerns provide further
reason to exempt . . . the situation of a case which has become
moot on appeal due to passage of legislation.”); Am. Library
Ass’n, 956 F.2d at 1187 (“Congress rendered the case moot by
passing legislation designed to repair what may have been a
constitutionally defective statute. Congress’ action represents
responsible lawmaking, not manipulation of the judicial pro-
cess.”).
The rule of vacatur that we recognize is for mootness
caused by enactments of Congress and state legislatures. The
strength of the rule may attenuate for lesser public bodies and
those with mixed legislative and executive character, where
closer inquiry may be permissible. We do not have occasion
in this case to calibrate that attenuation.
[14] The statutory amendment that moots this case legally
cannot be attributed to the Association, regardless of its legis-
lative advocacy. We accordingly vacate the lower court’s
judgment and remand with instructions to dismiss the case as
moot.
VACATED and REMANDED.