2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-12-2004

Wyatt VI Inc v. Govt of VI

Precedential or Non-Precedential: Precedential

Docket No. 02-2695

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

____________ 

Nos: 02-2695/3762

_____________

WYATT, VIRGIN ISLANDS, INC.

HOVENSA, LLC,

 Intervenor-Plaintiff in District Court

 v.

GOVERNMENT OF THE VIRGIN

ISLANDS BY AND THROUGH THE

VIRGIN ISLANDS DEPARTMENT OF

LABOR; CECIL BENJAMIN,

IN HIS OFFICIAL CAPACITY AS

COMMISSIONER OF THE VIRGIN

ISLANDS DEPARTMENT OF LABOR

VIRGINIE GEORGE; MALCOLM

MACCOW; EDGAR BARRIOS;

CLAUDE GAINE

 

Intervenors-Defendants in District Court

Government of the Virgin Islands,

Appellant in 02-2695

 Virginie George, Malcolm Maccows,

 Edgar Barrios and Claude Gaines,

 Appellants in 02-3762

 

Appeal from the District Court of the

Virgin Islands

(D.C. Civil Action No. 02-cv-00029)

District Judge: Honorable Raymond L.

Finch

 

Argued on April 30, 2003

Before: ROTH, MCKEE and COWEN

Circuit Judges

(Opinion filed: October 12, 2004)

Iver A. Stridiron

Attorney General

Elliott M. Davis

Solicitor General

Douglas J. Juergens (Argued)

Maureen Phelan

Richard S. Davis

Assistant Attorney General

Department of Justice 

48B-50C Kronprindsens Gade

GERS Building, 2nd Floor

St. Thomas, VI 00802

K. Glenda Cameron (Argued)

Lee J. Rohn

Law Office Lee J. Rohn

1101 King Street, Suite 2

Christiansted 

St. Croix, USVI, 00820

Counsel for Appellants
2

Charles E. Engeman (Argued)

Ogletree, Deakins, Nash, Smoak &

Stewart

1336 Beltjen Road

Suite 202

Charlotte Amalie, St. Thomas, VI 00802

W. Carl Jordan

Tara Porterfield (Argued)

Vinson & Elkins L.L.P.

2300 First City Tower

1001 Fannin Street

Houston, TX 77002-6760

George H. T. Dudley

Micol L. Morgan

Dudley, Topper and Feuerzeig, LLP

Law House, 1A Frederiksberg Gade

Charlotte Amalie, St. Thomas

U.S. Virgin Islands 00802

Counsel for Appellees 

 

O P I N I O N

 

ROTH, Circuit Judge

Plaintiffs, Wyatt V.I., Inc., and

HOVENSA, L.L.C., brought an action for

declaratory and injunctive relief in the

District Court of the Virgin Islands. The

dispute arose from the requirement Wyatt

imposed on prospective employees that

they sign a Dispute Resolution Agreement

(DRA) as a condition of employment.

Plaintiffs sought (1) a declaration that the

DRA is enforceable and (2) an injunction

to prohibit the Commissioner of the

Department of Labor from interfering with

their use of the DRA. The District Court

granted declaratory relief in plaintiffs’

favor. Although the defendants raise many

grounds on appeal, the only issue we need

address is whether the plaintiffs’ action for

declaratory and injunctive relief is ripe for

judicial review. For the reasons we state

below, we conclude that, under Public

Service Commission v. Wycoff Co., Inc.,

344 U.S. 237 (1952), there is no “case of

actual controversy” here as is required by

28 U.S.C. § 2201(a). Thus, plaintiffs’

cause of action is not ripe for review.

I. BACKGROUND

In 2001, HOVENSA awarded

Wyatt a contract to provide maintenance

and other services at HOVENSA’s oil

refinery in St. Croix, Virgin Islands. In

November 2001, Wyatt began accepting

employment applications in the Virgin

Islands. As a condition of employment,

Wyatt required all applicants to sign the

DRA. Under the DRA, each applicant

agreed to submit to binding arbitration all

claims arising from the applicant’s

candidacy for employment or the terms

and conditions of any offer of

emp loymen t . 1 Wya tt’s parent

 

1

 The Dispute Resolution Agreement

provides in relevant part:

NOTICE TO ALL APPLICANTS

If you wish to be considered

for employment with Wyatt V.I.,
3

corporation, Wyatt Field Services Co.,

does not require app licants for

employment on the mainland United States

to sign a DRA.

Prospective employees complained

to the Virgin Islands Department of Labor

about the DRA. As a result of these

complaints, the Commissioner of the

Department of Labor sent two letters to

Wyatt requesting that Wyatt “cease and

desist” its use of the DRA. In the first

letter, dated December 20, 2001, the

Commissioner wrote to Todd Reidlinger,

a manager at Wyatt in the Virgin Islands,

“[t]he agreement is improper and illegal; it

does not serve as a portrayal of reasonable

and fair labor/management relations.” The

Commissioner also asserted the

Department of Labor’s belief that the DRA

violated the Virgin Islands Wrongful

Discharge Act (WDA), 24 V.I.C. § 76.

Then in a February 1, 2002, letter, sent to

Carmelo Rivera, a human resources

Inc. (“Wyatt”), you must read and

sign the fo llowing Dispute

Resolution Agreement. Your

application will not be considered

until you have signed the

Agreement. If you desire to do so,

you may take this document with

you to review. You must, however,

return a signed copy of the

Agreement with your application if

you wish to continue the

application process.

Dispute Resolution Agreement

I recognize that differences

may arise between Wyatt and me in

relation to my application for

employment. Both Wyatt and I

agree to resolve any and all claims,

disputes or controversies arising

out of or relating to my application

or candidacy for employment or the

terms and conditions of any offer of

employment exclusively by final

and binding arbitration before a

neutral arbitrator pursuant to the

American Arbitration Association’s

National Rules for the Resolution of

Employment Disputes, a copy of

which is available at www.adr.org

or from Wyatt. By way of example

only, some of the types of claims

subject to final and binding

arbitration include claims for an

alleged wrongful decision not to

hire me; claims for discrimination

or harassment on the basis of age,

race, religion, disability, national

origin or other basis prohibited by

state, federal, or territorial law; or

claims for breach of any

employment ag reem ent o r

promises; and any claims for

personal injury or property damage.

This agreement extends to disputes

with or claims against Wyatt V.I.,

Inc., HOVENSA, L.L.C., and any

of their related or affiliated

companies, entities, employees or

individuals (as intended third party

beneficiaries to this agreement).
4

consultant for Wyatt, the Commissioner

stated: 

We will do whatever is

necessary to ensure that the

Virgin Islands’ workforce

receive every ‘employment

protection’ guaranteed to

them under our labor laws.

You are hereby advised that

a willful violation of 24

V.I.C. § 76 will be reported

to Office of the Attorney

General for prosecution.

Please cease and desist from

this practice. You r

cooperation is expected. 

Wyatt nevertheless continued to use

the DRA as a condition of employment.2

The Department of Labor then requested

an opinion from the Office of the Attorney

General of the Virgin Islands regarding

Wyatt’s use of the DRA. On March 1,

2002, the Attorney General issued an

opinion letter, stating:

We find that this case is ripe

for injunctive and/o r

declaratory relief, and we

shall proceed to seek such

relief on behalf of the

Department of Labor and

the prospective employees

of Wyatt. We expect to

gather affidavits to support

such an ac tion from

prospective employees who

were told they had to sign

these agreements if they

wanted to be considered for

employment with Wyatt,

and felt coerced into signing

the agreements.

* * *

The pre-employment dispute

resolu t i o n agreemen t

required by Wyatt, Inc. for

prospective employees is in

violation of 24 V.I.C. 76,

and is unconscionable,

coercive, an adhesion

contract, and is contrary to

an important public policy

in the Virgin Islands which

recognizes the employment

reality of an island

economy.

After the Attorney General issued the

opinion, the Commissioner notified Wyatt

of his intent to bring charges if Wyatt

continued to use the DRA. 

The Government, however, never

filed suit against Wyatt. Instead, on March

20, 2002, Wyatt instituted an action for

declaratory and injunctive relief against

the Government. In Count I, Wyatt sought

 

2

 In an apparent effort to reconcile

the dispute over the use of the DRA, the

Commissioner and Wyatt’s attorney

conferred by telephone before the

Commissioner sent the first letter. Wyatt

agreed to remove objectionable language

from the DRA concerning employment at

will but continued to use essentially the

same DRA. The two also met after the

Commissioner sent the first letter but did

not resolve the dispute. 
5

a declaration under the Federa l

Declaratory Judgment Act, 28 U.S.C. §

2201(a ), and the Virgin Islands

Declaratory Judgment Act, 5 V.I.C. §1261,

that 1) by agreeing to arbitrate, an

applicant or employee does not forego

substantive rights, but instead agrees to

resolution of all disputes in an arbitral

forum; 2) the Federal Arbitration Act

(FAA), 9 U.S.C. §§ 1 - 16, governs the

enforceability of arbitration agreements

covering employment disputes; 3) the

DRA is protected by and enforceable

under the FAA; 4) the DRA does not

violate the WDA; 5) the DRA is not

unconscionable; 6) the DRA is not

contrary to the public policy of the Virgin

Islands; 7) even if the DRA violates the

WDA, the WDA is preempted by the

FAA; and 8) the Commissioner’s “cease

and desist” letters are unenforceable to the

extent they purport to require Wyatt to

abandon its use of the DRA. In Count II,

Wyatt claimed a violation of the federal

civil rights statute, 42 U.S.C. § 1983, and

alleged that the Commissioner was

attempting to deprive Wyatt of its liberty

interest in entering into lawful contracts. In

Count III, Wyatt sought injunctive relief

against the Commissioner. Wyatt named,

as defendants, the Government of the

Virgin Islands by and through the Virgin

Islands Department of Labor and Cecil

Benjamin, in his Official Capacity as

Commissioner of the Virgin Islands

Department of Labor.

HOVENSA moved to intervene as

a third party beneficiary to Wyatt’s DRA

because the DRA granted HOVENSA the

same right to demand arbitration as it

granted Wyatt. The motion was granted.

HOVENSA’s complaint in intervention

alleged the same counts as Wyatt’s,

excluding the request for injunctive relief.

After the suit had commenced

Virginie George, Malcolm Maccow, Edgar

Berrios, and Claud Gaines, prospective

employees whom Wyatt would not

consider for employment because of their

refusal to sign the DRA, moved to

intervene as defendants. That motion was

also granted.3

The District Court became

concerned about its jurisdiction to hear the

case and ordered the parties to address that

issue. In its Memorandum Opinion dated

June 5, 2002, the District Court concluded

that it did not have subject matter

jurisdiction based on the alleged violation

of 42 U.S.C. §1983. The District Court

held, however, that it did have federal

question jurisdiction pursuant to 18 U.S.C.

§ 1331, based on Wyatt’s claim that the

FAA provides a substantive right to enter

into an arbitration agreement and that any

local law in conflict with the FAA is

preempted by virtue of the Supremacy

Clause of the United States Constitution.

Wyatt, V.I., Inc. v. Government of the

 

3

 The prospective employees also

moved to reopen the evidence to allow

presentation of evidence of “coercion,

duress, lack of ability to apply for jobs

elsewhere, the illegality of the provision

and the public policy of the Virgin

Islands.” The District Court denied the

prospective employees’ motion to reopen

the evidence. 
6

Virgin Islands, 2002 WL 31599790, * 2

(D.V.I. June 5, 2002).

The District Court ruled that

declaratory relief was an appropriate

remedy in the case because Wyatt was

facing “a threat of liability if it continues

to use the Dispute Resolution Agreement

without a determination of its legality.” In

granting declaratory relief in Wyatt’s

favor, the court first noted that there was

no preemption issue because there is no

Virgin Islands law or policy directly in

conflict with enforcement of the DRA

under the FAA. The District Court next

concluded that the DRA is enforceable

under the FAA because it is not

unconscionable, coercive, or contrary to

public policy. Finally, the District Court

denied Wyatt’s request for injunctive

relief. The court reasoned that any further

Government action would be unlikely as a

result of the declaratory judgment entered

in Wyatt’s favor.

The Governmen t and the

prospective employees filed their appeals

on June 7, 2002, and September 27, 2002,

respectively.4 Wyatt does not appeal the

District Court’s denial of injunctive relief.

During the pendency of this appeal,

we have held in Lloyd v. HOVENSA,

L.L.C., 369 F.3d 263 (3d Cir. 2004), that

Wyatt’s DRA was not unenforceable as

violative of public policy, 369 F.3d at 274,

and we affirmed an order compelling

arbitration pursuant to the DRA. 369 F.3d

at 275.

II. JURISDICTION AND

STANDARD OF REVIEW

The District Court purported to

exercise jurisdiction pursuant to the

general federal question statute, 28 U.S.C.

§ 1331.

We have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291,

which gives the courts of appeals

jurisdiction over appeals from all final

decisions of the district courts. We

exercise plenary review over whether a

cause of action is ripe. See Doe v. County

of Centre, PA, 242 F.3d 437, 452 (3d Cir.

2001).

III. DISCUSSION

As one ground of appeal, the

prospective employee defendants have

challenged the District Court’s decision to

exercise judicial review of the case on the

ground that the case is not yet ripe.5 First,

they submit that the Commissioner’s cease

and desist letters were not orders within

the meaning of 24 V.I.C. § 68(c). They

further urge that, even if the cease and

desist letters are considered orders, the

Commissioner never petitioned the

Territorial Court for enforcement of the

orders. They argue that, because the

Territorial Court never entered a decree

 

4

 The prospective employees filed a

motion to reconsider in the District Court

on June 19, 2002, but they withdrew that

motion on September 27, 2002 and filed

a notice of appeal the same day.

 

5

 The prospective employees relied

on a ripeness argument in their brief and

at oral argument, but the Government did

not rely on this ground for appeal.
7

enforcing the orders, there was no final

administrative or state action; therefore,

the case was not ripe for judicial

intervention. 

Wyatt and HOVENSA contend that

the case is ripe for judicial review because

the Commissioner’s “cease and desist”

orders constitute concrete action in the

sense that the orders affect Wyatt’s

primary conduct, namely what contracts

Wyatt can utilize in its hiring process.

Additionally, Wyatt asserts that it had no

choice but to bring its action for

declaratory and injunctive relief because it

thought it would be subject to fines or

imprisonment under 24 V.I.C. § 75 if it

continued to ignore the orders of the

Commissioner. 

We agree with the prospective

employee defendants that this case is not

ripe under the “case of actual controversy”

requirement of the Declaratory Judgment

Act of 1934, 28 U.S.C.A. § 2201. Because

we decide the appeal on this basis, we will

not go on to discuss the other grounds for

appeal. 

The Declaratory Judgment Act

creates a remedy by which federal courts

“may declare the rights and other legal

relations of any interested party seeking

such declaration” when there is a “case of

actual controversy.” 28 U.S.C. § 2201(a).

The Supreme Court, in upholding the

constitutionality of the Act, has interpreted

the remedy as limited to cases and

controversies in the constitutional sense.

See Aetna Life Insurance Co. of Hartford,

Conn. v. Haworth, 300 U.S. 227, 240

(1937). A “case of actual controversy”

means one of a justiciable nature.

Ashwander v. Tennessee Valley Auth.,

297 U.S. 288, 325 (1936). The Act is

constitutional “so far as it authorizes relief

which is consonant with the exercise of the

judicial function in the determination of

controversies to which under the

Constitution the judicial power extends.”

Aetna, 300 U.S. at 240. 

In order for there to be a “case of

actual controversy” in the constitutional

sense, the controversy must be 

one that is appropriate for

judicial determination. A

justiciable controversy is

thus distinguished from a

difference or dispute of a

hypothetical or abstract

character; from one that is

academic or moot. The

controversy must be definite

and concrete, touching the

legal relations of parties

having adverse lega l

interests. It must be a real

and substantial controversy

admitting of specific relief

through a decree of a

conclusive character, as

distinguished from an

opinion advising what the

law would be upon a

hypothetical state of facts. 

Aetna, 300 U.S. at 240-41 (citations

omitted). The conflict between the parties

must be ripe for judicial intervention; it

cannot be “nebulous or contingent” but

“must have taken on fixed and final shape

so that a court can see what legal issues it

is deciding, what effect its decision will
8

have on the adversaries, and some useful

purpose to be achieved in deciding them.”

Wycoff, 344 U.S. at 244. 

Interrelated to our discussion of

what constitutes a “case of actual

controversy” in the constitutional sense is

the ripeness doctrine. The purpose of the

ripeness doctrine is to “prevent the courts,

through avoidance of premature

adjudication, from entangling themselves

in abstract disagreements over

administrative policies, and also to protect

the agencies from judicial interference

until an administrative decision has been

formalized and its effects felt in a concrete

way by the challenging parties.” Abbott

Laboratories v. Gardner, 387 U.S. 136,

148-49 (1967), overruled on other

grounds, Califano v. Sanders, 430 U.S. 99,

105 (1977). In determining whether a

dispute has matured to a point to require

judicial adjudication, courts must consider

“the fitness of the issues for judicial

decision and the hardship to the parties of

withholding court consideration.” Id. at

149. A dispute is not ripe for judicial

determination “‘if it rests upon contingent

future events that may not occur as

anticipated, or indeed may not occur at

all.’” Doe v. County of Centre, PA, 242

F.3d 437, 453 (3d Cir. 2001) (quoting

Texas v. United States, 523 U.S. 296, 300

(1998)). “Claims based merely upon

‘assumed potential invasions’ of rights are

not enou gh to wa rrant jud icial

intervention.” Ashwander, 297 U.S. at

325 (quoting Arizona v. California, 283

U.S. 423, 462 (1931)).

In Wycoff, the Supreme Court

faced the issue whether there was a “case

of actual controversy” in an action seeking

declaratory and injunctive relief, under the

Federal Declaratory Judgment Act, to

establish that certain film products were

being transported in interstate commerce.

The Utah Public Service Commission had

denied the plaintiff’s application for

authorization to carry film commodities

within the state. The plaintiff commenced

an action in federal court, seeking both a

declaratory judgment that its carriage of

motion picture film and newsreels between

points in Utah constituted interstate

commerce and an injunction from

interfering with this transportation.

Wycoff, 344 U.S. at 239. 

The Court decided that the case was

not ripe for judicial review. First, the

Court noted that the dispute had not

matured to a point where the Court could

see what controversy was going to

develop. Id. at 245. It was not enough

that the plaintiff feared future

administrative or judicial action by the

commission. Id. 

Second, the Court noted that the

declaratory proceeding, as it was invoked

by the plaintiffs, not only “foreclos[ed] an

administrative bod y,” but w a s

“incompatible with a proper federal-state

relationship.” Id. at 247. The Court

stated:

Declaratory proceedings in

the federal courts against

state officials must be

decided with regard for the

implications of our federal

system. State administrative

bodies have the initial right

to reduce the general
9

policies of state regulatory

statutes into concrete orders

and the primary right to take

evidence and make findings

of fact. It is the state courts

which have the first and the

last word as to the meaning

of state statutes and whether

a particular order is within

the legislative terms of

reference so as to make it

the action of the State.

Id.; Cf. Topp-Cola Co. v. Coca-Cola Co.,

314 F.2d 124, 126 (2d Cir. 1963) (holding

that, under Wycoff, District Court erred in

exercising jurisdiction over the plaintiff’s

action for declaratory relief because, just

as federal “interference” with state

administrative agencies and interpretation

of state law is “condemned,” plaintiff’s

federal action seeking relief from

territorial administration of Puerto Rican

trademark law is similarly condemned).

The dispute presented in the case

before us is Wyatt’s claim that it was

facing prosecution under 24 V.I.C. § 75

and the possibility of the imposition of

fines. Section 75 provides:

Whoever wilfully

resists, prev ents,

impedes or interferes

w i t h th e

Commissioner or his

duly a uthoriz e d

representative, in the

performance of his

duties pursuant to

this chapter, shall be

fined not more than

$500 or imprisoned

not more than 3

months, or both.

(emphasis added). We note first

that Wyatt does not mention

potential prosecution under § 75 in

its complaint requesting declaratory

relief. Nor is § 75 mentioned at the

District Court hearing on April 4,

2002, or in the District Court’s

Memorandum Opinion of June 5,

2002, granting declaratory relief to

Wyatt. In fact, at the April 5

hearing, the Assistant Attorney

General, representing t h e

Government, stated:

With respect

to enforcement of a

cease and desist

order, I believe that

there is no single

way in which cease

and desist orders are

to be enforced.

T h e

government has at its

arsenal more than

o n e tech nique ,

including the seeking

o f declar ato r y

judgment, which was

the intention in this

matter and which, to

some extent, appears

to be the direction in

which it’s going.

We believe
10

that by getting a

court to adjudicate

the dispute we would

be resolving the

issues raised by the

cease and desist

order, and that’s it.

The government, however,

has never taken any steps to obtain

a declaratory judgment or to invoke

any other remedy as set out in

Chapter 3 of Title 24 of the Virgin

Islands Code. Such remedies

would include a petition for judicial

enforcement of an order, pursuant

to § 69, a petition for judicial

review of an order, pursuant to §

70, or an order for reinstatement of

a wrongfully discharged employee,

pursuant to § 77(c). Because the

penalties of § 75 are limited to

resisting, preventing, impeding or

interfering with the Commissioner

in the performance of his duties, as

set out in Chapter 3, it would

appear that the Commissioner

would have to seek further remedial

action under Chapter 3, than he has

done here, before he could invoke

the penalties of § 75. Wyatt’s fears

appear then to be premature.

The only action that Commissioner

did take was to write two letters in which

he requested that Wyatt “cease and desist”

its use of the DRA. Such a letter is not an

“order,” nor was there any evidentiary

hearing held prior to the transmittal of

either letter. The inconclusiveness of the

Commissioner’s decision on how he would

follow up the initial letters and the opinion

letter of the Attorney General is

demonstrated by the statement, which we

quote above, of the Assistant Attorney

General at the April 5 District Court

hearing. 

As in Wycoff, the plaintiffs merely

feared potential future administrative or

judicial action and brought this action for

declaratory relief “to hold in readiness for

use should the Commission[er] at any

future time attempt to” use his powers to

issue an order and enforce that order

through the Territorial Court. See Wycoff,

344 U.S. at 245. In essence, the dispute

between the parties is contingent upon

events that may not occur at all or may

occur differently than anticipated. See

Doe v. County of Centre, PA, 242 F.3d at

453. Because Wyatt did not give the

Commissioner the chance to proceed on its

own grounds, the Department of Labor

never had the opportunity “to reduce the

general policies of [its] state [statute] into

[a] concrete order,” and the Virgin Islands

never had the opportunity to give the “last

word” as to the meaning of the WDA and

whether the Commissioner’s order was

“within the legislative terms of reference

so as to make it the action of” the Virgin

Islands. Wycoff, 344 U.S. at 247. Wyatt

has not yet felt the effects of final

administrative or state action in a concrete

way. Abbott Laboratories, 387 U.S. at

148-49. For the above reasons, we

conclude that this cause of action is not yet

ripe for review.

The Governmen t and the

prospective employees also argue that the

District Court did not have federal
11

question jurisdiction under 28 U.S.C. §

1331. They contend that Wyatt’s request

for a declaration that “even if the

Agreement violates the WDA, the WDA is

preempted by the FAA” is in reality an

anticipated federal defense of preemption

which, under the well-pleaded complaint

rule, does not by itself give the District

Court subject matter jurisdiction over

Wyatt’s cause of action. In response,

Wyatt submits that the District Court did

have jurisdiction, notwithstanding the

well-pleaded complaint rule, under Shaw

v. Delta Airlines, 463 U.S. 86 (1983).

Wyatt argues that they presented a federal

question over which the District Court had

jurisdiction because they sought to enjoin

the Commissioner from interfering with

their federal right to enter into arbitration

agreements on the ground that the WDA is

preempted by the FAA. See id. at 96, n.14

(“A plaintiff who seeks injunctive relief

from state regulation, on the ground that

such regulation is pre-empted by a federal

statute, which by virtue of the Supremacy

Clause of the Constitution must prevail,

thus presents a federal question which the

federal courts have jurisdiction under 28

U.S.C. § 1331 to resolve.”).

Because we will dismiss this case

on ripeness grounds, we do not need to

decide the federal question jurisdiction

issue at this time. See Wycoff, 344 U.S. at

248-49 (“Since this case should be

dismissed in any event, it is not necessary

to determine whether, on this record, the

alleged controversy over an action that

may be begun in state court would be

maintainable under the head of federalquestion jurisdiction.”). 

IV. Conclusion

For the foregoing reasons, we will

reverse the District Court’s grant of

declaratory relief and remand this case to

the District Court with directions to

dismiss it.