Andrea Santiago v. City of Chicago ( 2021 )

In the
United States Court of Appeals
Hor the Seventh Cireuit
No. 20-3522
ANDREA SANTIAGO,
Plaintiff-Appellee,
CITY OF CHICAGO,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19-cv-4652 — Matthew F. Kennelly, Judge.
ARGUED SEPTEMBER 28, 2021 — DECIDED DECEMBER 13, 2021
Before FLAUM, KANNE, and SCUDDER, Circuit Judges.
KANNE, Circuit Judge. Andrea Santiago, a severely disabled
Chicago resident, would leave her van parked on the street in
front of her home for extended periods of time. In 2018, pur-
suant to the Chicago Municipal Code, her van was towed, im-
pounded, and disposed of. She sued the City of Chicago on
her own behalf and on behalf of others similarly situated,
challenging the constitutionality of various aspects of the
City’s scheme, among other things. She moved the district
2 No. 20-3522
court to certify her suit as a class action, and the district court
granted her motion in part. However, because the class certi-
fication order does not fully demonstrate the “rigorous anal-
ysis” required by Rule 23, an approval, at this point, consti-
tuted an abuse of discretion. We therefore vacate and remand
for further consideration.
I. BACKGROUND
A. Factual Background
Santiago is severely disabled. A childhood bout with polio
left her unable to move any of her extremities. She also suffers
from multiple sclerosis. She therefore uses a wheelchair to
move around and cannot drive. Additionally, Santiago’s pri-
mary language is Spanish, and she does not read, speak, or
write English effectively. Consequently, she relies on her
daughter, Lisandra Velez, for transportation, translation, and
assistance with English-based transactions and daily tasks.
Although Velez drove for Santiago, the wheelchair-acces-
sible van they used was owned by Santiago. Velez testified
that she used the van “very sporadic[ally]” to take her mother
to appointments and activities. She estimated that they used
the van at least four times per year, and that it “would sit for
months at a time sometimes without being moved.” In be-
tween uses, it would be parked on the street in front of their
home.
On May 7, 2018, someone called the City’s non-emergency
services number to complain that Santiago’s van was aban-
doned. On June 5, an investigator visited Santiago’s vehicle,
reported it as abandoned, and affixed a “Tow Notice” sticker
to one of its windows. Among other things, the Tow Notice
explained that the vehicle needed to be moved by a certain
No. 20-3522 3
date to avoid being towed. Velez saw the notice, removed it
from the window, did not tell Santiago about it, took her to
run some errands, and parked the van in a different spot on
the same street upon returning. Nonetheless, on June 13 a tow
driver towed Santiago’s van to an impound lot.
When Velez discovered that the van was missing, she at-
tempted to locate it, but was unable to do so until several days
later. Velez determined which impound lot had the van, and
then learned from employees at the lot that she needed a no-
tarized letter from Santiago to retrieve the van. She returned
with a notarized letter but was told it was insufficient. Then,
while she was figuring out the next steps, an employee noti-
fied her that her car had been destroyed.
In between the towing of Santiago’s van and its disposal,
the City mailed two identical “Vehicle Impoundment No-
tices” to Santiago on the same day. The notices explained that
without further action by Santiago within fifteen days, her ve-
hicle would be disposed of. Velez disputes, however, that she
or Santiago ever saw these notices.
B. Tow, Impoundment, and Disposal Procedures
In Chicago, it is unlawful to abandon any motor vehicle on
any public way. Chi. Mun. Code § 9-80-110(a). In relevant
part, vehicles are “deemed to have been abandoned if ... [they
have] not been moved or used for more than seven consecu-
tive days and [are] apparently deserted.” Id. If a vehicle is
deemed abandoned, certain City employees are authorized to
issue a notice of parking violation and then remove the vehi-
cle to a City pound. Id. § 9-92-030(d).
When a vehicle is impounded in this way, the Department
of Police or the Department of Streets and Sanitation must
4 No. 20-3522
identify the owner within ten days and send the owner notice
of the impoundment. Id. § 9-92-070(a). If the vehicle is regis-
tered, the notice must be sent by certified mail. Id. If not, it
must be sent by first-class mail. Id.
If an abandoned and impounded vehicle remains un-
claimed for eighteen days after the notice of impoundment is
mailed, the Superintendent of Police or the Commissioner of
Streets and Sanitation may dispose of the vehicle “if, during
that 18-day period,” they send the owner “an additional no-
tice by first class mail.” Id. § 9-92-100(a). Unless the vehicle’s
value substantially exceeds its scrap value, it shall be disposed
“to a person licensed as an automotive parts recycler, re-
builder or scrap processor.” Id. § 9-92-100(b).
In practice, the process begins when a resident makes an
abandoned-vehicle complaint. An investigator visits the vehi-
cle and determines if it falls into one of the categories of aban-
doned vehicles. For cars that lack registration, a sticker is af-
fixed to the vehicle—not mailed—notifying the owner that
the car is parked in violation of the municipal code. The tow-
notice sticker that was in use when Santiago’s car was deemed
abandoned appears below:
No. 20-3522 5
VEHICLE LOCATION : _ :
Department of Streets and Sanitation CITY OF CHICAGO
TOW NOTICE
This vehicle is in violation of Section 9-80-110 of the Municival Gade of Chicace
Abandoned Motor Vehicle.” ' Tne
J In a State of ctisrepair incapable of being driven in its present Condition,
“Not being moved ur used for more than savean consecutive daye, Each day such vehicle
_femains so abandoned shall constitute a’separate and distinct offense for which a sep:
penalty may be imposed, : nicig
“Has been jeft on the public way without stale regi 1 pi np
: f registration plates or a tamporary stat
tegistration placard for two or more days. aioe
“his vehicle Is In violation af Section 9-84-1209 of the Municipal Code of Chicagu.
O This serves as nolice that the vehicia is parked unlawfully and m
hic! ay be towed
after the date of this notice. ; ieee
He Leiinie is in violation of Section 625 ILCS 5/4-201b of the Iilinois Venicla Code as an Abandoned
phicla,
GA vehicle or part thereof abandoned on private or public property other than a highway, in view
of the public for mare than seven conseciltive days. This vehicle must bo removed from the
public way/private or public property by. 20 a
To be driven it must be properly licensed. Your tailure to comply with the provisions of this.
ordinance will subject the vehicle to be towed and impounded by the City of Chicago,
J Has been found to be a hazardous dilapidated vehicle under Section 11-4003.1 of the iilinoie
Municipal Code and may be towed immediately,
Vastigatnr,
‘icker Issued = 20.
ul (312) 746-4957 between 6 a.m. and 2 p.m.
Badge No. Ward
. Ifyou have any questions. about this noilce,
For vehicles deemed abandoned because they were not
moved for seven days, the investigator checks the second and
second-to-last boxes and indicates a date by which the vehicle
must be moved to avoid being towed. Notably, at the bottom
of the notice there is anumber that people can call if they have
any questions.
On the date indicated, a tow driver is dispatched to the
location where the vehicle was parked when the sticker was
affixed to it. If the vehicle is still there, then the tow driver
removes the vehicle and impounds it.
When it is impounded and inventoried, two identical Ve-
hicle Impoundment Notices are printed and mailed sepa-
rately, but on the same day, to the owner of the vehicle. These
notices contain instructions for how to retrieve the vehicle and
how to request a hearing to contest the validity of the tow and
6 No. 20-3522
associated charges, and a warning that the car will be dis-
posed of if the owner does not act within fifteen days. When
vehicles are disposed of, they are generally sold for fifteen
dollars to the City’s contractor, United Road Towing, Inc.
C. Santiago's Claims
Santiago’s complaint comprises ten counts, divided be-
tween two purported classes of plaintiffs. Counts I to III were
brought on behalf of a proposed “Tow Class” and focused on
the City’s pre-tow notice. Counts IV to X were brought on be-
half of a proposed “Vehicle Disposal Class” and concerned
the City’s alleged failure to send a statutorily required addi-
tional notice to vehicle owners before their vehicles were dis-
posed of.
In a March 18, 2020 order, the district court dismissed
Counts II, IX, and X. It then terminated Santiago’s pending
motion for class certification to allow her to revisit it in light
of the dismissal order. She promptly did and renewed the mo-
tion.
The claims that remained when Santiago filed her re-
newed motion for class certification were:
e Tow Class: Count I (Declaratory and Injunctive Relief);
Count IIT (§ 1983 Due Process);
e Vehicle Disposal Class: Count IV (Declaratory and In-
junctive Relief-Unlawful Disposal); Count V (Unjust
Enrichment); Count VI (Mandamus); Count VII (De-
claratory and Injunctive Relief-Takings),; Count VIII
(§ 1983 Takings).
No. 20-3522 7
D. Class-Certification Order
By the time the district court considered Santiago’s motion
for class certification, her proposed class definitions took the
following forms:
All individuals and entities who, since June 11, 2017,
had their vehicle towed by the City of Chicago due
to it being considered “abandoned” by the City un-
der [Section 9-80-110(a)(b) of the Municipal Code of
Chicago] and where the vehicle lacked current state
registration at the time of the tow (the “Tow Class”).
All individuals and entities who, since June 11, 2014,
had their vehicle towed—by or through the Depart-
ment of Streets and Sanitation pursuant to Chapter
9-92 of the Municipal Code of Chicago—and dis-
posed of by the City (the “Vehicle-Disposal Class”).
Santiago sought class certification under two parts of Fed-
eral Rule of Civil Procedure 23: (b)(2) and (b)(3). Rule 23(b)(2)
covers declaratory and injunctive relief, while Rule 23(b)(3)
governs situations where common questions predominate
over individual inquiries.
The district court found that neither the Tow Class nor the
Vehicle Disposal Class could be certified under Rule 23(b)(2)
because “Santiago ha[d] not alleged that she faces a real and
immediate threat of future injury” sufficient to entitle her to
prospective relief. (R. 80 at 13.) Therefore, it determined, she
would not be an adequate representative for either proposed
23(b)(2) class. Seemingly, this means that Counts I, IV, VI, and
VII did not make the cut for class certification, as all sought
prospective relief. While the mandamus claim was not men-
tioned specifically, neither party has referred to the claim on
8 No. 20-3522
appeal or otherwise acted as though it continues to be rele-
vant.
With respect to the certification of each class under Rule
23(b)(3), the district court found, in relevant part, that Santi-
ago was an adequate representative and that common issues
predominated. Regarding adequacy, the court “found noth-
ing in the record to suggest that Santiago’s interests are con-
trary to those of the proposed class members, that she is in-
sufficiently interested, or that her counsel are unqualified or
inexperienced.” (R. 80 at 13.) The common issues that it found
to predominate were the “adequacy of notice given to the pro-
posed class members before the tow (the tow class) and the
constitutionality of the City’s standard practices (the vehicle-
disposal class).” (Id. at 14.)
In rejecting the City’s arguments that individual issues ac-
tually predominated in the Tow Class, the court relied exclu-
sively on the fact that Santiago “is asserting only a facial chal-
lenge: the ordinance is unconstitutional because it fails to re-
quire adequate notice before a vehicle has been towed.” (Id. at
14-15.) Therefore, “personal circumstances do not matter.”
(Id. at 15.)
It then pivoted to the Vehicle Disposal Class, rejecting the
City’s arguments “[f]or the same reasons already discussed”
in its Tow Class analysis. (Id. at 16.) It also “overrule[d] the
City’s assertion that state law requires the vehicle-disposal
class to show prejudice from the City’s failure to strictly fol-
low its ordinance” because the “class’s takings claim is based
in federal law, not state law.” (Id.)
No. 20-3522 9
II. ANALYSIS
We review the grant of a motion for class certification for
an abuse of discretion, “which can occur when a district court
commits legal error or makes clearly erroneous factual find-
ings.” Bell v. PNC Bank, Nat’ Ass’n, 800 F.3d 360, 373 (7th Cir.
2015) (citing Reliable Money Ord., Inc. v. McKnight Sales Co.,
Inc., 704 F.3d 489, 498 (7th Cir. 2013)). “Our review is deferen-
tial, but exacting: ‘A class may only be certified if the trial
court is satisfied, after a rigorous analysis, that the prerequi-
sites’ for class certification have been met.” Id. (quoting CE
Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 723
(7th Cir. 2011)). “The party seeking certification bears the bur-
den of demonstrating that certification is proper by a prepon-
derance of the evidence.” Id. (citing Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012)).
Federal Rule of Civil Procedure 23 governs class actions.
“Rule 23(a) sets forth four universal requirements for class ac-
tions: ‘numerosity, typicality, commonality, and adequacy of
representation.” Beaton v. SpeedyPC Software, 907 F.3d 1018,
1025 (7th Cir. 2018) (quoting Messner, 669 F.3d at 811). “Rule
23(b) then identifies particular types of classes, which have
different criteria. Where, as here, certification is sought under
Rule 23(b)(3), common questions of law or fact must predom-
inate over individual inquiries, and class treatment must be
the superior method of resolving the controversy.” Id.
The City challenges, on the same grounds, the district
court’s decisions to certify the Tow Class and the Vehicle-Dis-
posal Class under Rule 23(b)(3). It asserts that the district
court erred when it determined that Santiago is an adequate
representative of the classes, see Fed. R. Civ. P. 23(a)(4), and
when it determined that questions of law or fact common to
10 No. 20-3522
each class predominate over individual inquiries, see Fed. R.
Civ. P. 23(b)(3). We will address these in reverse order.
A. Predominance
If Rule 23(a) is satisfied, a class action may only be main-
tained under Rule 23(b)(3) if “the court finds that the ques-
tions of law or fact common to class members predominate
over any questions affecting only individual members, and
that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.” Fed. R.
Civ. P. 23(b)(3).
“The guiding principle behind predominance is whether
the proposed class’s claims arise from a common nucleus of
operative facts and issues.” Beaton, 907 F.3d at 1029 (citing
Messner, 669 F.3d at 815). “This requires more than a tally of
common questions; the district court must consider their rel-
ative importance.” Id. (citing Parko v. Shell Oil Co., 739 F.3d
1083, 1085 (7th Cir. 2014)). “On the other hand, not every issue
must be amenable to common resolution; individual inquiries
may be required after the class phase.” Id. (citing Kleen Prods.
LLC v. Int7 Paper Co., 831 F.3d 919, 922 (7th Cir. 2016)). “Rule
23(b)(3) requires a showing that questions common to the class
predominate, not that those questions will be answered, on
the merits, in favor of the class.” Amgen Inc. v. Conn. Ret. Plans
& Tr. Funds, 568 U.S. 455, 459 (2013). Fundamentally, this “in-
quiry tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.” Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 623 (1997) (citing 7A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1777 (2d ed. 1986)).
No. 20-3522 11
We encounter a fatal flaw in the district court’s order very
early in our analysis. The Supreme Court has noted that
“{cJonsidering whether ‘questions of law or fact common to
class members predominate’ begins, of course, with the ele-
ments of the underlying cause of action.” Erica P. John Fund,
Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). The district
court’s order, however, does not discuss any of the elements
of the underlying causes of action, nor in clear terms explain
what the causes of action are. This and other clarity issues
throughout the record have created difficulty on appeal.
As we briefly touched on above, it is not entirely apparent
which claims survived to the class-certification stage, but os-
tensibly there are seven. The seven are divided between the
two proposed classes. Santiago urged that the classes be cer-
tified under two different provisions of Rule 23. In its order,
the district court analyzed the proposed classes under each
provision, but never made clear which claims the analyses re-
fer to. Did it analyze all claims in the Tow Class under Rule
23(b)(2) and then again under Rule 23(b)(3)? Did it do the
same for the Vehicle Disposal Class? Or did it separate the
claims into four distinct classes: Tow Class damages, Tow
Class prospective relief, Vehicle Disposal Class damages, Ve-
hicle Disposal Class injunctive relief? If it divided the claims
this way, then which claims did it put into each class?
The district court appears to have organized its analysis
around potential common questions rather than the claims at
issue. It writes that “[t]he predominant issues in this case for
each class are the adequacy of notice given to the proposed
class members before the tow (the tow class) and the consti-
tutionality of the City’s standard practices (the vehicle-dis-
posal class).” (R. 80 at 14.) Presumably, this means it analyzed
12 No. 20-3522
the Tow Class as though only Counts I and III are contained
within it, both premised on an alleged due process violation.
And if further divided, that means there is a proposed Tow
Class for injunctive relief with Count I in it and a proposed
Tow Class for damages with Count III’s § 1983 claim in it. We
could also venture that the Vehicle Disposal Class contains
Counts VII and VIII in it, both premised on an alleged uncon-
stitutional taking. And if further divided, that means there is
a proposed Vehicle Disposal Class for injunctive relief with
Count VII in it and a proposed Vehicle Disposal Class for
damages with Count VIII's § 1983 claim in it.
We wonder, then, what happened to the mandamus and
unjust enrichment claims? Neither appear to have been dis-
missed from the action, and both were purportedly brought
on behalf of one of the classes. No one mentions the manda-
mus claim, but the unjust enrichment claim is a point of con-
tention on appeal. The City argues that the district court “ig-
nored the ... unjust enrichment claim altogether.” (Appel-
lant’s Br. at 9.) Santiago claims that “the City did not make
any arguments below challenging the propriety of certifying
[her] unjust enrichment claim.” (Appellee’s Br. at 10.) And the
district court did not analyze the claim at all or connect it to
the purported predominant takings issues in the Vehicle Dis-
posal Class analysis. It does mention it in a parenthetical,
though, as a justification for Santiago changing her proposed
Vehicle Disposal Class definition to account for a five-year
statute of limitations. So, did the district court include this
claim in its class certification? We do not know.
If we assume the district court divided the claims as we
did above, which there is some justification for, (see R. 80 at 17
(“The court denies plaintiff's request for certification of
No. 20-3522 13
injunctive relief classes under Rule 23(b)(2) ... .”)), then it is
likely the case that the district court certified a Tow Class for
damages regarding only a § 1983 due process claim and a Ve-
hicle Disposal Class for damages regarding only a § 1983 tak-
ings claim.
If so, the district court should have begun its analysis with
the elements of these claims. See Erica P. John Fund, Inc., 563
U.S. at 809. Then it could have more clearly framed within
those elements what it deemed to be the common and indi-
vidual issues. By juxtaposing them in that way, the district
court’s predominance inquiry would have better “train[ed] on
the legal or factual questions that qualify each class member’s
case as a genuine controversy.” Messner, 669 F.3d at 814 (quot-
ing Amchem Prods., Inc., 521 U.S. at 623).
Only by properly circumscribing the claims and breaking
them down into their constituent elements can a district court
decide which issues are common, individual, and predomi-
nant. Id. at 815 (“If, to make a prima facie showing on a given
question, the members of a proposed class will need to pre-
sent evidence that varies from member to member, then it is
an individual question. If the same evidence will suffice for
each member to make a prima facie showing, then it becomes
a common question.” (quoting Blades v. Monsanto Co., 400 F.3d
562, 566 (8th Cir. 2005))); see also Beaton, 907 F.3d at 1029 (not-
ing that the predominance inquiry “requires more than a tally
of common questions; the district court must consider their
relative importance”).
Moreover, this exercise would crystallize the import of
certain arguments, like whether Santiago had actual notice
that her car would be towed or disposed of, and whether her
claims are facial or as-applied challenges. See 1 Joseph M.
14 No. 20-3522
McLaughlin, McLaughlin on Class Actions § 3:12, Westlaw (da-
tabase updated October 2021) (“A court must look beyond
pleadings in order to properly understand the claims, de-
fenses, relevant facts, and applicable substantive law in order
to make a meaningful decision on class certification, as it must
consider how a trial on the merits would be conducted.”).
Because the district court did not engage in the detailed
analysis that a Rule 23 decision requires, an abuse of discre-
tion occurred.
B. Adequacy of Representation
One of Rule 23(a)’s four core prerequisites to class certifi-
cation is that the representative party —here, Santiago— must
“fairly and adequately protect the interests of the class.” Fed.
R. Civ. P. 23(a)(4).
To be an adequate representative, “[a] named plaintiff
must be a member of the putative class and have the same
interest and injury as other members.” Beaton, 907 F.3d at 1027
(citing Conrad v. Boiron, Inc., 869 F.3d 536, 539 (7th Cir. 2017)).
The “representative might be inadequate if he is subject to a
substantial defense unique to him.” Id. (citing CE Design Ltd.,
637 F.3d at 726, 728). “Conflicts of interest, as distinct from
differences in entitlements, create an issue of adequacy of rep-
resentation by requiring the class representative to choose be-
tween competing class members.” Johnson v. Meriter Health
Servs. Emp. Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012). But even
if conflicts materialize, “it may be possible to resolve them by
[creating] subclasses and appointing new class representa-
tives” for them. Id.The City’s only argument here with respect to the Tow
Class is that the district court erred in finding that Santiago is
No. 20-3522 15
an adequate representative because she is subject to a unique
defense: that she received actual notice through Velez, who
read and removed the sticker, that her car would be towed.
Santiago contends that the district court properly concluded
that actual notice does not preclude a plaintiff from challeng-
ing the notice’s procedural sufficiency. In other words, in her
view, the actual notice defense is irrelevant. This dispute cen-
ters around the proper interpretation of the holding in Mem-
phis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978).
The City attacks the district court’s Vehicle Disposal Class
adequacy ruling with the same type of argument. It asserts
that, regardless of whether the City violated its Municipal
Code by sending two notices on the same day, Santiago had
actual notice through Velez that the van had been towed and
impounded, and indeed Velez attempted to retrieve the vehi-
cle before it was disposed of. Santiago responds that the dis-
trict court was correct in its conclusion that she was an ade-
quate representative. The district court, for its part, concluded
that the City’s argument “fails here too. A central issue in this
case is whether sending two copies of the same notice at the
same time meets the requirements of the ordinance, so on this
point Santiago’s situation is typical of that of the other class
members. Moreover, all of the proposed vehicle-disposal
class members challenge the sufficiency of the notice they re-
ceived.” (R. 80 at 12.)
The district court’s analysis of the adequacy element for
both classes suffers from the same deficiency that the predom-
inance inquiry suffered from. Because the classes and claims
are not clearly defined and because the district court does not
attach its arguments to specific elements of the claims, we are
not confident that the district court has conducted a rigorous
16 No. 20-3522
analysis. For the Tow Class, at a minimum, the district court
should have mentioned the relevant claim, listed the ele-
ments, and explained how the Memphis Light actual-notice
controversy relates to those elements.
Similarly, for the Vehicle Disposal Class, the district court
should have identified the claim at issue and explained how
the City’s arguments relate to that claim. When the district
court wrote that “all of the proposed vehicle-disposal class
members challenge the sufficiency of the notice they re-
ceived,” it brought into relief one of the issues not fully ad-
dressed. Santiago challenges the sufficiency of the sticker no-
tice in her due process claim in the proposed Tow Class. It is
not relevant to the Vehicle Disposal Class. Here, a more rigor-
ous analysis would have avoided conflating these arguments.
We believe the district court’s less-than-rigorous analysis
of this issue also constitutes an abuse of discretion.
a a
Because it did not properly engage in the rigorous analysis
that a class certification order requires, the district court in
several ways abused its discretion. However, that is not to say
that the errors of omission of the district court lead it to reach
a result that was substantively incorrect.
We simply do not have enough information organized ef-
ficiently to reach a conclusion that the order of class certifica-
tion is correct or incorrect; in fact, we are unable to reach any
conclusions here about whether common issues predominate,
whether Santiago is an adequate representative of either class,
or whether she brings meritorious claims.
Therefore, we vacate the decision of the district court and
remand for another try, if that is the course the parties choose
No. 20-3522 17
to chart. Once this case is back in the district court, the parties
may want to consider the prudence of assisting the district
court by amending their pleadings, accounting for all claims,
clearly defining the proposed classes and the claims within
them, and cleaning up their arguments before revisiting class
certification. And if another motion for class certification is
submitted, we hope that the parties will assist the court in
providing a sufficiently clear and rigorous analysis regarding
certification.
III. CONCLUSION
For the reasons stated above, the district court abused its
discretion in certifying the Tow Class and the Vehicle Dis-
posal Class. We VACATE and REMAND for further consider-
ation.