Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. , 263 F. App'x 348 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1714
FRIENDS OF THE EARTH, INCORPORATED; CITIZENS
LOCAL ENVIRONMENTAL ACTION NETWORK,
INCORPORATED,
Plaintiffs - Appellees,
versus
GASTON COPPER RECYCLING CORPORATION,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:92-cv-02574-MJP)
Argued: October 30, 2007 Decided: February 7, 2008
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Louise W.
FLANAGAN, Chief United States District Judge for the Eastern
District of North Carolina, sitting by designation.
Remanded by unpublished per curiam opinion.
ARGUED: Jeffrey M. Gaba, GARDERE, WYNNE & SEWELL, L.L.P., Dallas,
Texas, for Appellant. Kathleen L. Millian, TERRIS, PRAVLIK &
MILLIAN, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Stacy
R. Obenhaus, GARDERE, WYNNE & SEWELL, L.L.P., Dallas, Texas, for
Appellant. Bruce J. Terris, Carolyn Smith Pravlik, Aamra S. Ahmad,
TERRIS, PRAVLIK & MILLIAN, L.L.P., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gaston Copper Recycling Corporation (“Gaston”) appeals an
order imposing civil penalties against it in a citizen suit brought
by Friends of the Earth (“FOE”) and Citizens Local Environmental
Action Network (“CLEAN”) under the Clean Water Act (“CWA” or “the
Act”), see 33 U.S.C.A. §§ 1251-1387 (West 2001 & Supp. 2007). We
order a limited remand for factual findings relating to whether FOE
and CLEAN (together, “Plaintiffs”) continue to have standing to
prosecute this suit.
I.
A.
The CWA provides that “[e]xcept as in compliance with [the
Act], the discharge of any pollutant by any person shall be
unlawful.” 33 U.S.C.A. § 1311(a) (West 2001). The Act established
the National Pollutant Discharge Elimination System (“NPDES”) to
authorize the issuance of permits for the discharge of limited
quantities of effluents, see 33 U.S.C.A. § 1342 (West 2001 & Supp.
2007), and individual states are allowed to issue NPDES permits
with the approval of the Environmental Protection Agency, see id.§ 1342(b). The State of South Carolina has established an NPDES
program administered by the Department of Health and Environmental
Control (“DHEC”). See S.C. Code Ann. § 48-1-100 (1987).
3
The CWA is subject to private enforcement as well as public
enforcement, in that “any citizen may commence a civil action on
his own behalf . . . against any person . . . alleged to be in
violation of . . . an effluent standard or limitation under this
chapter.” 33 U.S.C. § 1365(a) (West 2001). Proof of liability may
result in an award of injunctive relief and the imposition of civil
penalties payable to the United States treasury. See id.B.
Gaston is a South Carolina corporation that owned and operated
a metals smelting plant in Gaston, South Carolina. When Gaston
purchased the plant in 1990, it was already covered by an NPDES
permit issued to the prior owner. The permit allowed Gaston to
discharge non-contact cooling water and treated stormwater into the
Boggy Branch of Bull Swamp Creek. Boggy Branch is a tributary of
Bull Swamp Creek, which, in turn, flows into the North Fork of the
Edisto River. The permit set effluent limitations and monitoring
requirements and required quarterly reporting of the monitoring
results. Gaston continued to operate under the original permit
until March 1, 1991, when a new permit was issued.
The new permit contained Phase I limits, which were effective
from March 1, 1991, to May 31, 1992, and Phase II limits, which
were effective from June 1, 1992, until expiration of the permit.
The Phase I effluent limits were largely the same as those of the
previous permit. They applied to total suspended solids, oil and
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grease, iron, cadmium, copper, lead, mercury, nickel, zinc, and
polychlorinated biphenyls (“PCBs”). They also contained limits on
“flow,” meaning the amount of wastewater that could be discharged
per day. The Phase II limits were stricter for cadmium, copper,
lead, mercury, zinc, and pH, and contained a limitation on
biochemical oxygen demand (“BOD”). The permit contained specific
requirements for monitoring and reporting and included a schedule
of compliance for Gaston to satisfy its Phase II effluent limits.
That schedule required Gaston to submit a preliminary engineering
report by March 31, 1991; submit final plans and specifications by
September 1, 1991, for any waste water treatment plant upgrade
needed to meet Phase II discharge limits; and meet those Phase II
limits by June 1, 1992. The 1991 permit remained in effect until
June 1997.
Despite the September 1, 1991, deadline, Gaston did not submit
the required final plans and specifications detailing its planned
improvements until December 23, 1991. DHEC approved the plans in
May 1992 and issued a draft permit modification, moving back the
effective date of the Phase II effluent limits until March 14,
1993. Following a public hearing regarding the proposed
modification, DHEC modified the permit in March 1993 to require
compliance with the Phase II limits by April 2, 1993. Gaston began
building its wastewater treatment upgrade in mid-July 1992.
5
On July 13, 1992, Plaintiffs sent Gaston a letter (“the notice
letter”) alleging that Gaston had violated and continued to violate
its permit’s requirements “in at least the instances set forth in
[an] attached chronological list of permit violations.” J.A. 485.
The attached list identified a total of eight violations of Phase
I effluent limitations from July 1990 to September 1991 for flow,
mercury, and PCBs. The letter further alleged that “[i]n addition
to the attached list of violations, there appear to be instances in
which the facility has failed to comply with the monitoring and
reporting requirements of the permit. However, the extent of these
violations cannot be determined from the information available.”
J.A. 485. The letter also informed Gaston that it had failed to
meet its deadline for submitting its final plans and specifications
to meet the Phase II limitations and failed to make modifications
to its facility to meet the Phase II limits by June 1, 1992. It
alleged that, as a result, “in June 1992, the facility will have
violated its permit limits at least as to pH, copper, PCBs, and
mercury.” J.A. 486.
Plaintiffs subsequently filed this citizens suit complaint on
September 14, 1992, alleging that Gaston had been discharging
pollutants into a South Carolina waterway in violation of the terms
of its permit in that it had failed to comply with its discharge
limits, failed to monitor and report its discharge properly, and
failed to adhere to its compliance schedule. Plaintiffs sought
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declaratory and injunctive relief, as well as the imposition of
civil penalties and other statutory relief. In its answer, Gaston
denied Plaintiffs’ principal allegations and asserted that
Plaintiffs lacked standing to prosecute the action. At the
conclusion of a six-day bench trial, Gaston also argued, inter
alia, that Plaintiffs had failed to prove any violations of which
they had provided the statutorily required notice prior to filing
suit. See 13 U.S.C.A. § 1365(b).
The district court declined to rule on the merits of the suit
and instead dismissed the complaint for lack of standing. The
district court determined that Plaintiffs failed to show that any
of their members had suffered an injury fairly traceable to
Gaston’s challenged conduct. See Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 9 F. Supp. 2d 589, 600-01 (D.S.C.
1998).
A divided panel of this court affirmed on appeal. See Friends
of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107,
116 (4th Cir. 1999). However, we subsequently granted rehearing en
banc and reversed the district court decision, holding that CLEAN
had established standing through its member Wilson Shealy. See
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204
F.3d 149, 155-64 (4th Cir. 2000) (en banc). We remanded to the
district court for further proceedings, including reconsideration
of whether FOE also had standing in light of the then-recently
7
issued Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167 (2000). See Gaston Copper Recycling, 204
F.3d at 161 n.1.
On remand, the district court found that Gaston violated its
effluent limitations for a total of 91 days. Phase I discharge
violations found by the district court concerned levels of pH,
cadmium, zinc, and iron, while Phase II discharge violations
concerned the same pollutants as well as oil and grease and copper.
However, the court determined that because DHEC had agreed to delay
the effective date of the Phase II effluent limits, Gaston was not
required to comply with those stricter limits until April 2, 1993,
and thus was not liable either for exceedances of those limits or
failures to report such exceedances prior to that date. The court
also found 396 monitoring violations and 323 violations for failing
to report discharge exceedances and monitoring violations.
Finally, the court found that Gaston violated its schedule of
compliance for 54 days. Finding that Gaston had made a good-faith
effort to comply with its permit and that it obtained no economic
benefit from its non-compliance, the district court imposed a civil
penalty of $2,340,000 and required Gaston to pay Plaintiffs’
attorneys’ fees and costs. The district court entered final
judgment on July 21, 2003.
Several post-trial motions followed. On July 23, 2003, Gaston
moved to amend the judgment with a filing that stated:
8
Defendant moves the Court, pursuant to Federal Rules
of Civil Procedure, Rule 52(b) and 59(e), to amend its
findings of fact and alter or amend its judgment in
accordance therewith. This Motion will be supported by
a memorandum which will be submitted in the time frame
established by the Court.
J.A. 238. On the same date Gaston moved for an extension of time
to file an accompanying memorandum. The district court granted the
extension on July 30, 2003. Then, on August 1, 2003, Gaston filed
a motion (“the notice motion”) in which Gaston asked the district
court to alter or amend its findings on the grounds that “the Court
erred in calculating the civil penalty amount by including matters
not covered by the notice letter served by the plaintiffs.” J.A.
266.
Plaintiffs and Gaston both also made post-trial motions
relating to standing. On August 1, 2003, Plaintiffs moved to amend
the judgment pursuant to Rules 52(b) and 59(e) to reflect that
Shealy had died prior to the judgment but that Plaintiffs continued
to have standing through FOE and CLEAN member Jones and FOE member
McCulloch. Plaintiffs requested that if the district court was
unable to conclude based on the then-existing record that both
Plaintiffs continued to have standing, Plaintiffs should be allowed
to supplement the record. Plaintiffs sought to present affidavits
from Shealy’s widow and son asserting that they were members of
CLEAN and adopting Shealy’s testimony as their own. Plaintiffs
also sought to present an affidavit from Jones describing his
continued use of the Edisto River since the trial. Gaston opposed
9
Plaintiffs’ motion and moved on August 29, 2003, for relief from
the judgment on the ground that Plaintiffs no longer had standing
to prosecute this case after Shealy’s death (“the Rule 60 motion”).
On September 16, 2005, the district court granted Plaintiffs’
August 1, 2003, motion to amend the judgment to reflect that Shealy
had died but that Plaintiffs continued to have standing through
Jones and McCullough. Apparently in light of that ruling, the
district court denied Plaintiffs’ request to supplement the record.
On May 22, 2006, the district court denied Gaston’s motions
challenging the amount of the civil penalty and claiming that
Plaintiffs no longer had standing after Shealy’s death. Gaston
then filed a notice of appeal on June 20, 2006.
II.
While Gaston’s appeal was pending, Plaintiffs filed a motion
in this court seeking dismissal of the appeal except insofar as it
challenged the district court’s denial of the Rule 60 motion. We
deferred ruling on this motion until after oral argument. We now
deny it.
As we have explained, the district court entered judgment
against Gaston on July 21, 2003. It is undisputed that Plaintiffs’
August 1, 2003, Rule 52(b)/59(e) motion tolled the time for
appealing. See Fed. R. App. P. 4(a)(4). Because the district
court granted this motion by order entered September 16, 2005,
10
Plaintiffs contend that the time for appealing expired 30 days from
that date. See Fed. R. App. P. 4(a)(1)(A)(ii). Since Gaston did
not appeal by that time, Plaintiffs argue that we lack jurisdiction
to consider an appeal of the judgment and possess jurisdiction to
review only the denial of its Rule 60 motion.
Gaston notes, however, that it had filed the notice motion on
August 1, 2003, within 10 court days of entry of the judgment.
Gaston argues that its motion also tolled the time for appealing
the final judgment, see Fed. R. App. P. 4(a)(4), just as
Plaintiffs’ motion tolled the appeal period. Because the notice
motion was not denied until May 22, 2006, and because Gaston filed
its notice of appeal within 30 days of that denial, Gaston
maintains its appeal of the final judgment was timely.
Plaintiffs respond, in turn, that the notice motion was
insufficient under Rule 7 of the Federal Rules of Civil Procedure
to toll the time for filing an appeal. We disagree.
Rule 7(b) requires that a motion “shall state with
particularity the grounds therefor, and shall set forth the relief
or order sought.” Fed. R. Civ. P. 7(b)(1). Although Rule 7(b)
applies to motions under Rule 59, Rule 7 “does not require
ritualistic detail but rather a fair indication to court and
counsel of the substance of the grounds relied on.” Fed. R. Civ.
P. 59 advisory committee’s note (1966 amendment).
11
The Appendix of Forms contained within the Federal Rules of
Civil Procedure provides examples of documents that “are sufficient
under the rules.” Fed. R. Civ. P. 84. These forms “are intended
to indicate the simplicity and brevity of statement which the rules
contemplate.” Id. Form 19 illustrates the liberal standard the
rules impose for determining the sufficiency of motions and thus
confirms the sufficiency of the notice motion. For example, Form
19 shows that a motion to dismiss is sufficiently detailed if it
seeks dismissal “because the complaint fails to state a claim
against defendant upon which relief can be granted.” Fed. R. Civ.
P. App. Form 19.
Here, Gaston’s motion stated,
Defendant moves the Court, pursuant to Federal Rules
of Civil Procedure, Rule 52(b) and 59(e), to amend its
findings of fact and alter or amend its judgment in
accordance therewith. The grounds for this Motion are
that the Court erred in calculating the civil penalty
amount by including matters not covered by the notice
letter served by the plaintiffs.
J.A. 266. This motion clearly provided more specificity than
Appendix Form 19 regarding the description of the legal basis for
the motion.* Additionally, the record reflects that long before
judgment was entered against it, Gaston fully articulated its
position (in proposed findings of fact and conclusions of law) that
Plaintiffs’ failure to provide adequate notice prevented the court
*
Plaintiffs contend that a Rule 52(b)/59(e) motion must state
its grounds more specifically than a 12(b)(6) motion, but we know
of no reason why that would be the case.
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from finding Gaston liable for any of the violations eventually
found by the district court. See J.A. 62-67. Under these
circumstances, no purpose would be served by requiring Gaston to
restate this position in its post-trial motion. We therefore hold
that the motion was sufficient under Rule 7(b), that it tolled the
time for appealing the final judgment, and that Gaston’s appeal of
the final judgment was timely.
III.
We now turn to Gaston’s jurisdictional challenge. Gaston
contends that the district court erred in holding that Plaintiffs
continued to have standing to prosecute this suit after Shealy’s
death prior to the entry of judgment. We remand to the district
court for further proceedings regarding this issue.
Article III of the Constitution restricts federal court
jurisdiction to the resolution of “cases” and “controversies,” and
the requirements of establishing Article III standing enforce this
jurisdictional restriction. See Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 11 (2004). “The standing requirement is
designed to guarantee that the plaintiff has a sufficient personal
stake in the outcome of a dispute to render judicial resolution of
it appropriate.” Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 298
(4th Cir. 2005) (internal quotation marks omitted). When a
plaintiff dies and no other plaintiff maintains a continuing
13
interest in the litigation, the federal courts no longer have
jurisdiction over the case. See Laidlaw Envtl. Servs., 528 U.S. at
192.
Here, Plaintiffs are both associations consisting of their
individual members. An association has
standing to bring suit on behalf of its members when:
(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect
are germane to the organization’s purpose; and, (c)
neither the claim asserted, nor the relief requested,
requires the participation of individual members in the
lawsuit.
Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333,
343 (1977). There is no dispute in this case regarding the latter
two elements. The jurisdictional issue here involves only the
first element. The question, then, is whether any of the
Plaintiffs’ members satisfies the general requirements for
individual standing.
To demonstrate that its members have standing, an organization
bears the burden of proving that: 1) at least one of its members
has suffered an actual or threatened injury; 2) the injury is
“fairly traceable” to the defendant’s actions; and 3) the injury
will likely be redressed if it prevails in the lawsuit. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks and alteration omitted).
The Supreme Court has made clear that a plaintiff need not
show a traditional trespass on property or tortious injury to
14
satisfy the actual-or-threatened-injury requirement. See Gaston
Copper Recycling, 204 F.3d at 154. Rather, damage to an
individual’s “aesthetic or recreational interests” may be
sufficient. Id. However, “because these and other noneconomic
interests may be widely shared, the Supreme Court has cautioned
that environmental plaintiffs must themselves be ‘among the
injured.’” Id. Otherwise, the case or controversy requirement
would be essentially meaningless. See id.Gaston maintains that Plaintiffs have not established that
their members are “among the injured” because they have not shown
that the members have the proper connection to the affected water.
We conclude that the record is not sufficiently clear for us to
decide whether that is true.
According to his testimony, Jones, a member of CLEAN and FOE,
is a retailer of canoes, kayaks, and other outdoor equipment and
provides canoe trips for the general public. His business takes
canoe trips that he often leads on the Edisto River downstream from
Gaston’s discharge point. Jones testified that guides on a canoe
trip tend to go into the water, as do the clients. Clients also
picnic and fish. Jones testified that he was concerned about the
quality of the rivers in which he canoes because his “business is
very much dependent upon the public’s perception that water quality
is good.” J.A. 446. Regarding his understanding of water quality,
Jones testified that “on the Edisto the heavy metals that may be
15
present from the Gaston Copper plant pose a very real concern.”
J.A. 446. Jones stated that his belief regarding the amount of
pollution in the river affected his enjoyment of canoeing and
swimming in that he had “greater confidence in [his] ability to
market [his] trips to the general public when [he was] taking
people into an area [where] they [would] have a quality experience
and [where] their health is going to be not threatened by the
quality of the water.” J.A. 447. Jones stated that in light of
the pollution that may be flowing from Gaston’s plant, he was
“concerned” about the quality of the water at issue even “aside
from [his] business interests.” J.A. 449.
McCullough, an FOE member, testified that he boated and scuba-
dived in “Pond Pond,” J.A. 452, and that he was planning to dive
again downstream from that area. He testified that he planned to
go canoeing on the Edisto in Colleton State Park. He described
both locations as being downstream of Edisto’s North Fork. When
asked about whether he was concerned about the quality of the water
in which he boated and went scuba-diving, McCullough stated that he
“would like to dive in water that is relatively clean” and that he
was “concerned about all waters in South Carolina that [he went
scuba-diving in] having contaminants, especially heavy metals [and]
pesticide runoff.” J.A. 453. He said that if he knew water
contained contaminants, he would be less likely to dive in it and
if he “thought the water was polluted, [he] would be less likely to
16
go canoeing in that particular spot and . . . would go to a
different spot that [he believed] would be less polluted or not
polluted at all.” J.A. 455.
Gaston argues that Jones’s and McCullough’s concern for the
water they use is not a sufficiently concrete injury to establish
standing in the absence of evidence that the water quality was
actually affected. We disagree. A plaintiff is not required to
present “additional scientific proof [of actual harm to the
environment] where there was a direct nexus between the claimant
and the area of environmental impairment.” Gaston Copper
Recycling, 204 F.3d at 159. That point is illustrated by Sierra
Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996), a
decision we cited with approval in our previous en banc opinion in
the present case, see Gaston Copper Recycling, 204 F.3d at 159-60.
There, the Fifth Circuit held that citizens’ concern about water
quality in Galveston Bay sufficed as injury in fact where “[t]wo of
the affiants live near Galveston Bay and all of them use the bay
for recreational activities.” Cedar Point Oil Co., 73 F.3d at 556.
The court held that it was sufficient that “the affiants expressed
fear that the discharge . . . will impair their enjoyment of these
activities because these activities are dependent upon good water
quality.” Id.Relying on Friends of the Earth v. Crown Central Petroleum
Corp., 95 F.3d 358 (5th Cir. 1996), Gaston also contends that
17
Jones’s and McCullough’s testimony was insufficient to establish
standing. In Lujan, the Supreme Court explained that a “plaintiff
claiming injury from environmental damage must use the area
affected by the challenged activity and not an area roughly ‘in the
vicinity’ of it.” Lujan, 504 U.S. at 565-66. In Crown Central,
the Fifth Circuit applied that principle to conclude that
downstream users located 18 miles and three tributaries from the
point of discharge could not establish standing since injury could
not be fairly traceable to a discharger based simply on the “truism
that water flows downstream.” Crown Cent. 95 F.3d at 361. Gaston
argues here that Plaintiffs have established only that their
members used water downstream of the point to which its discharge
flowed, and that that is not sufficient to satisfy the Lujan
standard.
We are unable, considering the current state of the record, to
determine whether Plaintiffs’ members have a sufficient connection
to the affected area. In our previous en banc decision in this
case, we held that CLEAN established standing because Shealy owned
a home and lake four miles downstream from Gaston’s discharge and
“that Gaston Copper’s discharges can impact the receiving waterway
for a good distance downstream--well past Shealy’s property and on
down to the Edisto River itself.” Gaston Copper Recycling, 204
F.3d at 158. In reaching that conclusion, we relied primarily on
evidence of an official written response from DHEC to the owner of
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a piece of property at the location where Bull Swamp Creek flows
into the Edisto River. The owner asked if the runoff would reach
his property. The response stated that the runoff would, in fact,
“go to Boggy Branch to Bull Swamp to the Edisto River” and added
that “[t]he confluence of Bull Swamp and the Edisto River is 16.5
miles [from the polluting facility].” Id. at 158 (internal
quotation marks & alteration omitted).
Regarding Jones, Plaintiffs established that Gaston’s runoff
flowed into the North Fork of the Edisto River and that Jones used
waters of the Edisto’s North Fork. Concerning which part of the
North Fork Jones used, Jones testified:
[W]e canoe from the main stem, an area that is described
as Green Pond Church, to Colleton State Park. Another
area is from Shill’s . . . Bridge to the Edisto Gardens
in Orangeburg, and another is from a location called
Rowesville down to a location called Branchville.
J.A. 442-43. Jones testified that he believed that all of these
areas were downstream of Bull Swamp Creek. Like Jones, McCullough
did not specifically testify that he had used, or even planned to
use, waters between Gaston’s facility and the Bull Swamp Creek.
Gaston observes that in our previous en banc decision, we
stated that the confluence of Bull Swamp Creek and the Edisto River
was “the acknowledged outer perimeter of the discharge zone,”
Gaston Copper Recycling, 204 F.3d at 158. Gaston maintains that
because Jones’s and McCullough’s use of the North Fork was
downstream of that confluence, they used waters only “roughly ‘in
19
the vicinity’ of” the affected area. Lujan, 504 U.S. at 566.
Gaston’s argument fails to take into account the context of the
statement on which it relies. The DHEC response that we referenced
in our previous opinion did not purport to identify the farthest
point downstream to which the runoff proceeded. Rather, it
addressed only whether the runoff proceeded as far as the
confluence of Bull Swamp Creek and the North Fork of the Edisto
River. DHEC acknowledged that it did proceed that far, and DHEC
had no reason to discuss to what extent the runoff proceeded
further. Thus, our description of the confluence as the
“acknowledged outer perimeter of the discharge zone” conveyed only
that it was the farthest point that DHEC had acknowledged the
runoff proceeded, not that DHEC acknowledged that that was the
farthest point the runoff reached.
The problem we are left with, however, is that we cannot
determine whether Jones or McCullough had the requisite connection
to waters in the affected area without knowing either that they
used the waters at the confluence of Bull Swamp Creek and the
Edisto’s North Fork or knowing how much farther beyond the
confluence that the runoff proceeded and where, in relation to this
point, the waters that Jones and McCullough used and planned to use
were. We therefore order a limited remand so that the district
court may resolve these factual issues. Because the scope of our
remand is narrow and this case has been pending for such a very
20
long time, we request a response from the district court as soon as
is practical.
IV.
In sum, we deny Plaintiffs’ motion for partial dismissal of
this appeal, and we order a limited remand to the district court.
REMANDED
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