1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-18-1996

Kreschollek v. So Stevedoring Co

Precedential or Non-Precedential:

Docket 95-5253

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Recommended Citation

"Kreschollek v. So Stevedoring Co" (1996). 1996 Decisions. Paper 219.

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1 

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

No. 95-5253 

 

CARL KRESCHOLLEK, 

 Appellant

v. 

SOUTHERN STEVEDORING COMPANY; 

LUMBERMEN'S MUTUAL CASUALTY CO.; 

ROBERT REICH, SECRETARY OF LABOR, and 

R. DAVID LOTZ, REGIONAL DIRECTOR, REGION III, 

OFFICE OF WORKERS' COMPENSATION PROGRAMS, 

UNITED STATES DEPARTMENT OF LABOR 

 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. No. 93-cv-03903) 

 

Argued December 4, 1995 

Before: SLOVITER, Chief Judge, 

STAPLETON and SAROKIN, Circuit Judges

 

(Opinion Filed March 18, 1996) 

David M. Linker (Argued) 

Freedman & Lorry 

Philadelphia, PA 19106 

 Attorney for Appellant Carl Kreschollek 

David R. Kunz 

Post & Schell 

Philadelphia, PA 19103 

 Attorney for Appellees Southern Stevedoring Co. 

 and Lumbermen's Mutual Casualty Co. 
2 

Steven J. Mandel 

Allen H. Feldman 

Deborah Greenfield (Argued) 

United States Department of Labor 

Washington, D.C. 20210 

 Attorneys for Appellee Secretary of Labor 

 and Regional Director, Offc. of Workers' Compensation 

 Programs 

 

OPINION OF THE COURT 

 

SLOVITER, Chief Judge. 

 Carl Kreschollek appeals from the district court's 

order dismissing for lack of subject matter jurisdiction his 

complaint interposing a facial challenge to the constitutionality 

of section 14 of the Longshore and Harbor Workers' Compensation 

Act (Longshore Act or Act). The district court so ruled after 

concluding that Kreschollek's claim could be raised in his 

pending administrative proceeding and thereafter on review in 

this court. Although we have previously held that the 

administrative review scheme provided in the Longshore Act 

supplants district court jurisdiction over claims for benefits, 

Kreschollek's claim presents a new twist on the question because 

his challenge to the Longshore Act is a constitutional one and he 

claims that the review process established by the Act is 

insufficient to address his injuries. 

I.
3 

 Kreschollek suffered a work-related injury on or about 

March 20, 1990 while employed as a longshoreman by Southern 

Stevedoring Co. Southern did not controvert its liability for 

benefits, and in late June of that same year it undertook 

voluntary compensation for Kreschollek's disability pursuant to 

33 U.S.C. § 914(b). It continued such payments until October 29, 

1992. Thereafter, it filed a notice of controversion with the 

District Director of the Office of Workers' Compensation 

Programs, asserting that Kreschollek was now able to return to 

work. Kreschollek contested the termination of compensation and, 

after an informal conference produced no resolution, the District 

Director, upon request by Kreschollek, transferred the case with 

his recommendations to the Department of Labor for a formal 

hearing before an Administrative Law Judge (ALJ). See 33 U.S.C. 

§ 919(c), (d) (1994); 20 C.F.R. § 702.301 (1995). An ALJ held a 

hearing on the case on December 15, 1993. 

 While the matter was pending before the ALJ, 

Kreschollek filed this action in the United States District Court 

for the District of New Jersey invoking jurisdiction under 28 

U.S.C. § 1331 and alleging that the review procedure under the 

Act is unconstitutional because it does not require a 

predeprivation hearing before employers who voluntarily 

compensated injured employees may terminate those benefits. 

Kreschollek sought restoration of his benefits, a declaration 

from the district court that section 14 of the Act, 33 U.S.C. 

§914, is unconstitutional, an injunction against termination of 

his benefits without a prior evidentiary hearing, and attorney's 
4 

fees and costs. Named as defendants were Southern Stevedoring 

Co.; Robert Reich, Secretary of Labor; R. David Lotz, Regional 

Director, Region III, Office of Workers' Compensation Programs; 

and Lumberman Mutual Casualty Co. All defendants moved to 

dismiss. 

 The ALJ's final decision on Kreschollek's 

administrative claim for benefits and the district court's ruling 

on the motion to dismiss were handed down within days of each 

other in March 1995. The ALJ denied Kreschollek's request for 

additional benefits. That ruling, which Kreschollek appealed to 

the Benefits Review Board, is not before us at this time. 

 The district court, in the decision that is on appeal 

to us, granted the motion to dismiss for lack of subject matter 

jurisdiction, holding that in light of the detailed 

administrative and judicial review procedure provided by the Act, 

Kreschollek's constitutional challenge must be raised in the 

court of appeals after exhaustion of administrative remedies, 

rather than in the district court through 28 U.S.C. § 1331. 

II.

A.

 The sole issue on appeal is whether the Longshore and 

Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., 

precludes district court review of Kreschollek's constitutional 

challenge to the Act. Although Kreschollek concedes that his 

claim for benefits must be adjudicated through the Act's 

administrative review procedure, he argues that the district 

court nonetheless has jurisdiction over his collateral 
5 

constitutional challenge to the adjudicatory process provided 

under the Act. 

 This court previously addressed the more general 

question of whether the Longshore Act supplants district court 

jurisdiction over claims challenging the Secretary's 

interpretation of the Act. Although that case arose in the 

context of the Black Lung Benefits Act, the Black Lung Benefits 

Act incorporates the scheme of administrative and judicial review 

of benefits determinations set forth in the Longshore and Harbor 

Workers' Compensation Act, see 30 U.S.C. § 932(a) (1994), and 

decisions thereunder are of obvious applicability. 

 In Compensation Department of District Five, United 

Mine Workers of America v. Marshall, 667 F.2d 336 (3d Cir. 1981), 

the United Mine Workers of America brought an action in federal 

district court to enjoin the Secretary of Labor from rereading Xrays of claimants seeking benefits pursuant to the Black Lung 

Benefits Act. The Union contended that the Black Lung Act 

required the Secretary, ALJ and Benefits Review Board (Board) to 

accept the x-ray reading made by the claimant's medical expert. 

The district court dismissed the action for lack of subject 

matter jurisdiction and this court affirmed, determining that 

"the scheme of review established by Congress for determinations 

of black lung disability benefits was intended to be exclusive." 

Id. at 340. 

 Several considerations led to our determination. First, 

we noted the general rule that if "there exists a special 

statutory review procedure, it is ordinarily supposed that 
6 

Congress intended that procedure to be the exclusive means of 

obtaining judicial review in those cases to which it applies." 

Id. (quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. 

Cir. 1979)). Moreover, we recognized the "strong presumption 

against the availability of simultaneous review in both the 

district court and the court of appeals." Id. (quoting Sun 

Enterprises, Ltd. v. Train, 532 F.2d 280, 287 (2d Cir. 1976)). 

 We next considered whether "the statute's legislative 

history, purpose, and design" suggested that the circumstances of 

the particular case should overcome the presumption, id., and 

concluded that they did not. In reaching this conclusion, we 

considered the following: 1) the Benefits Review Board was 

created to provide uniformity in application of the Act and to 

prevent duplication of review; 2) the Act was amended in 1972 in 

part to oust the district courts from jurisdiction over benefits 

claims; 3) Congress's provision for review of Board 

determinations in the court of appeals reflected its intention to 

require exhaustion of administrative remedies prior to seeking 

judicial review; and 4) permitting the Board and district court 

to consider the same issue would create a danger of duplicative 

and conflicting litigation. We acknowledged, however, that in 

certain circumstances, such as if the remedies available through 

the statutory scheme of review are inadequate, a district court 

might have subject matter jurisdiction over a complaint involving 

the Black Lung Benefits Act. Id. at 341-44. 

 The issue of preclusion of district court jurisdiction 

for claims arising under the Black Lung Act arose again in 
7 

Connors v. Tremont Mining Co., 835 F.2d 1028 (3d Cir. 1987). In 

Connors, a union Benefit Plan and Trust sought reimbursement from 

coal mine operators for medical benefits it had paid to a large 

number of black lung claimants. The Plan argued that the issue 

was governed by the terms of the Plan, which was covered by the 

Employee Retirement Income Security Act, and therefore it invoked 

federal question jurisdiction. We rejected the Plan's attempt to 

assert jurisdiction in the district court, holding once again 

that in a case involving disability benefits pursuant to the 

Black Lung Benefits Act, federal question jurisdiction is 

supplanted by the procedure established by the statute. Id. at 

1030-31. 

 The reasoning of Compensation Department and Connors is 

consistent with the approach taken by the Supreme Court in its 

recent decision in Thunder Basin Coal Co. v. Reich, 114 S. Ct. 

771 (1994), raising a similar issue in the context of the Federal 

Mine Safety and Health Amendments Act of 1977 (Mine Act). Thunder 

Basin, a mine operator, sued in district court challenging the 

Mine Safety and Health Administration's instruction that it post 

the names of the two representatives its employees had chosen 

pursuant to the Mine Act to participate in mine inspections, 

obtain certain health and safety information and promote health 

and safety enforcement. The mine operator's objection was that 

the designated representatives were not its employees, but were 

employed by the union. Although there was a statutory procedure 

for administrative review of a citation for violation of such an 

order, the mine operator challenged the Administration's 
8 

interpretation of the Mine Act as permitting such designations by 

seeking a pre-enforcement injunction from the district court. It 

argued that designation of union representatives who were not its 

employees violated the principles of collective-bargaining 

representation under the National Labor Relations Act and 

infringed its right to exclude union organizers from its 

property. It also argued that the Administrator's action 

violated its Fifth Amendment due process rights by compelling it 

to choose between violating the Act and enduring the irreparable 

harm that it would allegedly suffer because of organizing 

advantages the union would gain as a result of the designation. 

 A unanimous Supreme Court held that the district court 

lacked jurisdiction over the pre-enforcement challenge. The 

Court stated that determination of whether a statute is intended 

to preclude initial judicial review is made from "the statute's 

language, structure, and purpose, its legislative history, and 

whether the claims can be afforded meaningful review." Thunder 

Basin, 114 S. Ct. at 776 (citations omitted). 

 Although the Mine Act is silent on the question of preenforcement claims, the Court looked at the detailed structure of 

the Act, which requires a mine operator to challenge a citation 

issued within 30 days; provides for review by an administrative 

law judge (ALJ), and possibly thereafter by the Federal Mine 

Safety and Health Review Commission (Commission), which must 

expedite review if necessary; and gives a mine operator the 

opportunity to challenge an adverse Commission decision in the 

appropriate court of appeals. There is express provision for 
9 

district court jurisdiction in only two instances: one empowering 

the Secretary to seek to enjoin habitual violations of health and 

safety standards and the other to coerce payment of civil 

penalties. 

 The Court concluded that the comprehensive review 

process provided within the Act signified an intent by Congress 

that most challenges would be heard within that process. 

Moreover, there was an emphasis in the legislative history on the 

need to improve penalties and enforcement measures and streamline 

the review process. This totality of factors led the Supreme 

Court to find that Congress intended to preclude district court 

jurisdiction over ordinary challenges under the Mine Act. Id. at 

777-79. 

 The Secretary argues that the reasoning of Thunder 

Basin and the Court's treatment of the Mine Act lead ineluctably 

to the conclusion that the district court lacked jurisdiction 

over Kreschollek's claim under the Longshore Act. We agree that 

Thunder Basin bolsters our earlier conclusion in Compensation 

Department that Congress intended that district court 

jurisdiction over most claims pertaining to benefits be 

precluded. Certainly, the review scheme provided in the 

Longshore Act is comparable in its comprehensiveness to that of 

the Mine Act. Under section 14(h) of the Longshore Act, the 

district director must initiate an investigation upon receiving 

notice from the employer that "payments of compensation have been 

stopped." 33 U.S.C. § 914(h) (1994). Where the parties' dispute 

is not resolved by means of an informal conference, see 33 U.S.C. 
10 

§ 914(h) (1994); 20 C.F.R. § 702.301 (1995), then an ALJ must 

conduct a full evidentiary hearing, 33 U.S.C. § 919(c), (d) 

(1994); 20 C.F.R. §§ 702.316, 702.331-.351 (1995). Either party 

may request review by the Benefits Review Board and thereafter by 

the appropriate court of appeals. 33 U.S.C. § 921(b), (c) 

(1994). 

 The Longshore Act, like the Mine Act construed in 

Thunder Basin, confers jurisdiction in the district court only in 

limited circumstances not applicable here. One such circumstance 

covers the situation when an employer fails to comply with a 

final compensation order making an award, and authorizes the 

beneficiary of the award or the district director making the 

order to apply to the district court for enforcement. 33 U.S.C. 

§ 921(d) (1994). Another such provision allows the Secretary to 

bring an action in district court to restrain violations of the 

Act's safety rules and regulations. 33 U.S.C. § 941(e) (1994). 

As in Thunder Basin, the comprehensive nature of the 

administrative review scheme and its limited provision for 

district court jurisdiction make "fairly discernible" a 

Congressional intent to preclude district court jurisdiction over 

most claims under the Act. 114 S. Ct. at 776 (quoting Block v. 

Community Nutrition Inst., 467 U.S. 340, 351 (1984)). 

 The legislative history of the Longshore Act also 

supports this reading. Before the Act was amended in 1972, it 

provided for deputy commissioners to resolve disputed claims by 

conducting evidentiary hearings and issuing initial decisions, 

which were reviewable in district court and ultimately in the 
11 

courts of appeals. See Compensation Dept., 667 F.2d at 341; 

Kalaris v. Donovan, 697 F.2d 376, 381-82 (D.C. Cir.), cert. 

denied, 462 U.S. 1119 (1983). Although effort at informal 

resolution of disputed claims continued to rest with deputy 

commissioners (renamed as district directors, see 20 C.F.R. 

§701.301(a)(7) (1995)), the 1972 amendments transferred to ALJs 

the formal adjudication of claims. The ALJ's decision was made 

reviewable by the Board to determine from the record developed 

before the ALJ if the decision was in accordance with law and 

supported by substantial evidence. Kalaris, 697 F.2d at 382. The 

Board now performs the identical function that the district 

courts performed before the 1972 amendments, eliminating the role 

of the district courts in the claims process. See Compensation 

Dept., 667 F.2d at 342. Thus, the changes effected by the 1972 

amendments further support reading the Act to preclude district 

court jurisdiction over ordinary challenges. 

B.

 This conclusion does not end our inquiry. We must 

proceed to consider, as the Court did in Thunder Basin, whether 

the claim asserted is of the type Congress intended to be 

reviewed within the Act's statutory structure. See Thunder 

Basin, 114 S. Ct. at 779. In that connection, the Court noted 

its own precedent upholding district court jurisdiction over 

"wholly collateral" claims, "particularly where a finding of 

preclusion could foreclose all meaningful judicial review." Id.

at 779. 
12 

 The Court's own discussion in Thunder Basin of its 

earlier cases permitting district court jurisdiction over 

collateral claims serves as a useful textbook exegesis of the 

situations in which district court jurisdiction is not deemed 

precluded, and it is useful to quote it in full. The Court 

stated: 

This Court previously has upheld district 

court jurisdiction over claims considered 

"wholly 'collateral'" to a statute's review 

provisions and outside the agency's 

expertise, Heckler v. Ringer, 466 U.S. 602, 

618, 104 S. Ct. 2013, 2023, 80 L. Ed. 2d 622 

(1984), discussing Mathews v. Eldridge, 424 

U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 

(1976), particularly where a finding of 

preclusion could foreclose all meaningful 

judicial review. See Traynor v. Turnage, 485 

U.S. 535, 544-545, 108 S. Ct. 1372, 1380, 99 

L. Ed. 2d 618 (1988) (statutory prohibition 

of all judicial review of Veterans 

Administration benefits determinations did 

not preclude [district court] jurisdiction 

over an otherwise unreviewable collateral 

statutory claim); Bowen v. Michigan Academy 

of Family Physicians, 476 U.S. 667, 678-680, 

106 S. Ct. 2133, 2140-2141, 90 L. Ed. 2d 623 

(1986); Johnson v. Robison, 415 U.S. 361, 

373-374, 94 S. Ct. 1160, 1168-1169, 39 L. Ed. 

2d 389 (1974); Oestereich v. Selective 

Service Bd., 393 U.S. 233, 237-238, 89 S. Ct. 

414, 416-417, 21 L. Ed. 2d 402 (1968); Leedom 

v. Kyne, 358 U.S. 184, 190, 79 S. Ct. 180, 

184, 3 L. Ed. 2d 210 (1958) (upholding 

injunction [over otherwise unreviewable 

bargaining unit determination] of agency 

action where petitioners had "no other means 

within their control . . . to protect and 

enforce that right"). 

Thunder Basin, 114 S. Ct. at 779. 

 The cases referred to by the Court in the above 

discussion provide the legal authority for Kreschollek's argument 
13 

that there is district court jurisdiction over his claim. In 

Mathews v. Eldridge, 424 U.S. 319 (1976), the Court held that the 

provision of the Social Security Act that required exhaustion of 

administrative remedies before the denial of benefits could be 

challenged in district court was not intended to bar federal 

jurisdiction over a due process challenge to the lack of a 

pretermination hearing. The Court explained that that issue was 

"entirely collateral" to the denial of benefits, and the claimant 

had made a colorable showing that he could not obtain full relief 

at a postdeprivation hearing. Id. at 330. 

 In McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 

(1991), also referred to in Thunder Basin, the Court held that an 

alien could challenge in district court the constitutionality of 

Immigration and Naturalization Service (INS) procedures used to 

process claims of alien farmworkers for "special agricultural 

worker" status under the Immigration Reform and Control Act, even 

though the Immigration and Naturalization Act expressly barred 

judicial review of individual determinations except in 

deportation and exclusion proceedings. The McNary Court held 

that the preclusion of review applied only to denials of 

individual applications, and not to a constitutional claim 

alleging a broad "pattern and practice" that was collateral to 

petitioners' substantive claim for special status. 498 U.S. at 

491-94. 

 The Court in Thunder Basin distinguished this long line 

of earlier cases from Thunder Basin's situation. First, it 

explained that Thunder Basin's challenge to the designation of 
14 

nonemployees as the miners' representatives required 

interpretation of the parties' rights and duties under the Mine 

Act and its regulations, thus implicating subjects within the 

Commission's expertise. Second, although constitutional 

challenges were generally considered beyond the jurisdiction of 

administrative agencies, under the Mine Act the reviewing body 

was not the agency itself but an independent commission created 

to review agency decisions, and in any event Thunder Basin would 

have an opportunity to present its claims to the appropriate 

court of appeals. Thunder Basin, 114 S. Ct. at 779-80. 

 Of course, Kreschollek's claim, and the statute and 

circumstances involved, bear some similarity to those in Thunder 

Basin. Like the Commission at issue in Thunder Basin, the 

Benefits Review Board is competent to hear claimants' legal 

contentions, see 33 U.S.C. § 921(b)(3) (1994) ("The Board shall 

be authorized to hear and determine appeals raising a substantial 

question of law or fact taken by any party in interest . . . with 

respect to claims" under the Longshore Act). Like the 

complainant mine operator in Thunder Basin, Kreschollek may seek 

review in the court of appeals, see 33 U.S.C. § 921(c) (1994) 

("Any person adversely affected or aggrieved by a final order of 

the Board may obtain a review of that order in the United States 

court of appeals . . . ."). And the Longshore Act does contain 

an express preclusion provision: "Proceedings for suspending, 

setting aside, or enforcing a compensation order, whether 

rejecting a claim or making an award, shall not be instituted 

otherwise than as provided in this section and section 918 of 
15 

this title." § 921(e). The Act is silent, however, as to 

whether constitutional challenges to the Act must be brought 

within the administrative claim process. 

 Although there have been instances in which 

administrative agencies have been deemed capable of dealing with 

constitutional issues in the first instance, see, e.g., Thunder 

Basin, 114 S. Ct. at 780, "[a]djudication of the 

constitutionality of congressional enactments has generally been 

thought beyond the jurisdiction of administrative agencies," 

Johnson v. Robison, 415 U.S. 361, 368 (1974) (quoting Oestereich 

v. Selective Service Bd., 393 U.S. 233, 242 (1968) (Harlan, J., 

concurring in result). This point was also made in Califano v. 

Sanders, 430 U.S. 99, 109 (1977), where the Court noted that 

"[c]onstitutional questions obviously are unsuited to resolution 

in administrative hearing procedures . . . ." This principle 

could most aptly be applied if judicial review would not 

otherwise be available, see, e.g., Bowen v. Michigan Academy of 

Family Physicians, 476 U.S. 667, 678-680 (1986), but it is 

equally pertinent in this case because the result, albeit not 

necessarily the absence of any judicial review at all, might well 

be the absence of any effective judicial review. 

 Kreschollek argues with some persuasiveness that in 

this respect his case shares more important similarities with the 

Mathews v. Eldridge line of cases than with Thunder Basin. As in 

Mathews, Kreschollek's claim that he has a constitutional right 

to a pretermination hearing is entirely collateral to his claim 

of entitlement to benefits. Moreover, unlike the situation 
16 

presented in Thunder Basin, where the mine operator sought to 

circumvent the administrative procedure and enjoin enforcement 

proceedings, Kreschollek's attempt to seek a declaration of his 

right to a pretermination hearing is in no way inimical to the 

purpose of the Act and its amendments, which is to create an 

effective process of providing adequate benefits to injured 

employees, see Schmit v. ITT Fed. Elec. Int'l, 986 F.2d 1103, 

1106 (7th Cir. 1993); see also H.R. Rep. No. 1441, 92d Cong., 2d 

Sess. 3, reprinted in 1972 U.S.C.C.A.N. 4698, 4698-99, 4711. 

 The critical distinction, however, is that in this case 

the administrative process is insufficient to provide Kreschollek 

the full relief to which he may be entitled. In Mathews, the 

Court noted that "[a] claim to a predeprivation hearing as a 

matter of constitutional right rests on the proposition that full 

relief cannot be obtained at a postdeprivation hearing." 424 

U.S. at 331. In Thunder Basin, the Court rejected the operator's 

argument that due process required district court review because 

it found that "neither compliance with, nor continued violation 

of, the statute will subject [Thunder Basin] to a serious 

prehearing deprivation." Thunder Basin, 114 S. Ct. at 781. 

Kreschollek, on the other hand, is more clearly at risk of 

irreparable harm due to the lack of a pretermination hearing. 

Kreschollek's benefits were terminated on October 29, 1992, and 

he contends he has been unable to return to work due to his 

disability. App. at 56. Thus he was deprived of all earned 

income for almost two-and-a-half years from the time that his 
17 

benefits were terminated until the ALJ issued a decision in March 

of 1995. 

 The inadequacy of the administrative review scheme to 

address the harm at issue - here, the lack of a pretermination 

hearing - is precisely the sort of situation which we envisioned 

in Compensation Department would permit a district court to 

exercise jurisdiction over a claim involving the Act. See

Compensation Dept., 667 F.2d at 343. Notably, unlike the Mine 

Act involved in Thunder Basin, the Longshore and Harbor Workers' 

Compensation Act does not provide for expedited review of 

benefits determinations. As in Mathews, Kreschollek "has raised 

at least a colorable claim that because of his physical condition 
18 

and dependency upon the disability benefits, an erroneous 

termination would damage him in a way not recompensable through 

retroactive payments." Mathews, 424 U.S. at 331. It follows 

that Kreschollek has alleged a sufficiently serious irreparable 

injury to lead us to conclude that the administrative review 

process is insufficient to afford him full relief. 

 Although Kreschollek has presented the same 

constitutional questions in the administrative proceeding, the 

danger of conflicting and duplicative litigation over which the 

Supreme Court expressed concern in Whitney National Bank v. Bank 

of New Orleans & Trust Co., 379 U.S. 411, 422 (1965), and which 

factored into our decision in Compensation Department is 

minimized in this case. By addressing only the constitutional 

claims, the district court decision will have no bearing upon the 

merits of Kreschollek's claim of entitlement to continuing 

disability benefits. Thus, the procedural problems presented by 

a pending district court claim should not present an 

insurmountable barrier to the exercise of district court 

jurisdiction. We are confident that the district court and the 

parties can fashion a workable solution should the issue arise. 

Kreschollek's counsel conceded at oral argument that at some 

point he may have to make a decision as to his forum. 
19 

III.

 For the reasons set forth above, we will reverse the 

order of dismissal and remand to the district court for 

proceedings consistent with this opinion.