August Term 2011 Heard: June 26, 2012 Decided: August 27, 2012 Docket Nos.… v. Shakarjian, 1 Louis D’Aurizio, as representatives of the 2 participants

11-5369-cv(L)
Janese v. Fay
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2011
Heard: June 26, 2012 Decided: August 27, 2012
Docket Nos. 11-5369-cv(L), 12-80-cv(XAP)
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Douglas A. Janese, Christopher V. Shakarjian, 1 Louis D’Aurizio, as representatives of the 2 participants and beneficiaries of the 3 former Niagara Genesee & Vicinity Carpenters 4 Local 280 Pension and Welfare Funds, 5
6 Plaintiffs-Appellants-Cross-Appellees, 7
8 v. 9
10 David A. Fay, Angelo Massaro, Dominic P. Massaro, 11 George R. Weidert, Christopher M Scrufari, 12 David J. Knapp, Trustees of the Niagara-Genesee 13 & Vicinity Carpenters Local 280 Pension and 14 Welfare Funds from 1994 through 1998, and John 15 J. Fuchs, Patrick Morin, John J. Simmons, Trustees 16 of the Niagara-Genesee & Vicinity Carpenters 17 Local 280 Pension and Welfare Funds from 2006 18 through 2008, and Gordon J. Knapp, Robert P. 19 Williams, Thomas P. Hartz, Trustees of the Niagara- 20 Genesee & Vicinity Carpenters Local 280 Pension 21 and Welfare Funds in 2000, and Santo S. Scrufari, 22 Russell P. Scrufari, Plan Managers of the Niagara- 23 Genesee & Vicinity Carpenters Local 280 Pension 24 and Welfare Funds, and Empire State Carpenters 25 Welfare Fund, Empire State Carpenters Pension Fund, 26
27 Defendants-Appellees-Cross-Appellants. 28 - - - - - - - - - - - - - - - - - - - - - - 29
30 Before: NEWMAN, WINTER, and POOLER, Circuit Judges. 31
32 Appeal from the May 2, 2011, judgment of the United States 33
District Court for the Western District of New York (John T. Curtin, 34
District Judge), dismissing as time-barred a complaint brought under 35
the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 36

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U.S.C. § 1001 et seq. The Appellants challenge the time-bar rulings; 1
the Appellees challenge, in light of subsequent Supreme Court 2
decisions, the continuing validity of our opinions in Chambless v. 3
Masters, Mates & Pilots Pension Plan , 772 F.2d 1032 (2d Cir. 1985), 4
and Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 498 (2d Cir. 5
1995), which stated that trustees of a pension plan act as fiduciaries 6
when they amend the plan. 7
Affirmed in part, vacated in part, and remanded; cross-appeal 8
dismissed as unnecessary. 9
Timothy Alan McCarthy, Buffalo, N.Y. 10 (Burd & McCarthy, Buffalo, N.Y., on the 11 brief), for Appellants-Cross-Appellees. 12
13 Jeffrey S. Swyers, Washington, D.C. 14 (Allison A. Madan, Slevin & Hart, P.C., 15 Washington, D.C.; Robert L. Boreanaz, 16 Lipsitz Green Scime Cambria LLP, 17 Buffalo, N.Y., on the brief), for 18 Appellees-Cross-Appellants. 19
20
21 JON O. NEWMAN, Circuit Judge: 22
This appeal and a purported cross-appeal primarily concern two 23
issues arising under the Employee Retirement Income Security Act of 24
1974 (“ERISA”), 29 U.S.C. § 1001 et seq. The first issue is whether 25
trustees of a multi-employer pension fund act as fiduciaries when they 26
amend the pension plan. The second issue is whether the claims 27
asserted in this case are time-barred. These issues arise on an 28
appeal by present and former beneficiaries of the former Niagara- 29

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1The Funds merged into the Empire State Carpenters Pension and
Welfare Funds, effective January 1, 2008.
2This opinion has been circulated to the active judges of the
Court prior to filing.
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Genesee & Vicinity Carpenters Local 280 Pension and Welfare Funds 1 from 1
the May 2, 2011, judgment of the District Court for the Western 2
District of New York (John T. Curtin, District Judge) dismissing their 3
complaint against present and former trustees and plan managers of the 4
Funds. The Plaintiffs-Appellants also appeal from the December 1, 5
2011, order denying their motion for reconsideration and for leave to 6
amend. By a purported cross-appeal, the Defendants-Appellees seek to 7
appeal that part of the District Court’s October 22, 2010, order that 8
had denied dismissal of Counts I-V of the Complaint for failure to 9
state a claim on which relief could be granted; these counts were 10
subsequently dismissed as time-barred. 11
We conclude that dismissal of Counts I-V was proper because the 12
trustees were not acting as fiduciaries in amending the Plan, and in 13
reaching that conclusion, we deem the contrary rulings of our Court in 14
Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032 (2d 15
Cir. 1985), and Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 16
498 (2d Cir. 1995), to have been abrogated by subsequent decisions of 17
the Supreme Court. 2 We also conclude that fact issues remain as to 18
whether Counts VII-IX were properly dismissed as time-barred. The 19
dismissal of Count VI is not challenged on appeal. On the appeal, we 20

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3Some defendants are members of multiple groups.
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therefore affirm in part, vacate in part, and remand. We dismiss the 1
cross-appeal as unnecessary. 2
Background 3
The parties. This is a derivative action brought on behalf of the 4
participants and beneficiaries of the Funds seeking to recover assets 5
that the Plaintiffs-Appellants assert were wrongfully depleted by the 6
Defendants-Appellees in violation of their fiduciary duties. The 7
Defendants-Appellees are present and former trustees or plan managers 8
of the Funds. The Complaint divides the trustees into four separate 9
groups, based on whether they served as trustees during the following 10
periods: (1) July 13, 2000 to December 31, 2007; (2) January 26, 1999 11
to July 12, 2000 (the “2000 trustees”); (3) January 20, 1994 to 12
January 25, 1999 (the “1994-98 trustees”); and (4) November 1993 to 13
January 19, 1994. 3 The two plan managers are Santo Scrufari, who 14
served from 1985 to July 14, 1996, and his son Russell, who succeeded 15
his father and served until December 31, 2008. 16
The allegations in the Complaint. The Complaint asserted nine 17
counts of breach of fiduciary duty, eight of which are at issue in 18
this appeal. Counts I-V alleged various plan amendments that are 19
claimed to have breached the trustees’ fiduciary duties. Count VI 20
alleged an increase in the monthly retirement benefit for a retired 21
trustee, accomplished with a plan amendment. The dismissal of this 22
count is not challenged on appeal. 23

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Count VII alleged that, from 1993 to July 14, 1996, Santo 1
Scrufari manipulated Pension Fund calculations in order to grant 2
himself and one trustee higher pay-outs than they were owed under the 3
Fund Plan. He concealed this from the other trustees by altering the 4
relevant pension credit records. Count VII further asserted that the 5
1994-98 trustees breached their fiduciary duties by failing to 6
adequately monitor Scrufari. Counts VIII-IX alleged that the 7
Scrufaris and their associates stole money from the Welfare Fund over 8
a number of years, fraudulently concealed these withdrawals by 9
labeling them “Scholarship” or “Health Care” benefits, and failed to 10
pay taxes on these withdrawals. Like Count VII, Counts VIII and IX 11
further asserted that the 1994-98 trustees and the 2000 trustees 12
failed to adequately monitor the Scrufaris. 13
Prior litigation involving Santo Scrufari. In 2006, Santo 14
Scrufari was found liable for a number of breaches of fiduciary duty, 15
including improper weighting of his fringe benefits, during the period 16
between March 1989 and October 1992. See LaScala v. Scrufari, No. 93- 17
CV-982C(F), 2006 WL 469404, at *1 (W.D.N.Y. Feb. 27, 2006), rev’d, 479 18
F.3d 213 (2d Cir. 2007), on remand, 2010 WL 475284, at *1 (W.D.N.Y. 19
Feb. 5, 2010). That suit did not consider Scrufari’s activities after 20
October 1992. See LaScala, 2006 WL 469404 at *1. 21
Procedural history of the pending suit. The Plaintiffs filed the 22
present action on June 26, 2009. They assert that they became aware 23
of the Defendants’ illegal activities after September 20, 2007, when 24
damages discovery in the LaScala case revealed incriminating 25

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documents. The Defendants moved to dismiss pursuant to Fed. R. Civ. P. 1
12(b)(6), principally asserting that the Plaintiffs’ claims were time- 2
barred under section 413 of ERISA, 29 U.S.C. § 1113 (as amended). The 3
District Court granted the motion as to all pertinent claims on that 4
basis but rejected the Defendants’ alternative claim that Counts I-V 5
did not allege actions that fell within the scope of ERISA’s fiduciary 6
duty statute. 7
Following entry of judgment, the Plaintiffs moved for 8
reconsideration of the District Court’s order and for leave to amend 9
the complaint to allege fraud with greater particularity. The 10
District Court denied the motion for reconsideration, rendering the 11
motion to amend moot. See National Petrochemical Co. of Iran v. M/T 12
Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991) (“[O]nce judgment is 13
entered the filing of an amended complaint is not permissible until 14
judgment is set aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 15
60(b).”) (internal quotation marks and citation omitted). 16
Discussion 17
I. Whether Trustees Act as Fiduciaries in Amending a Plan 18
We consider first the contention of the Appellees that the 19
dismissal of Counts I-V should be affirmed on the ground that the 20
actions challenged in those counts were pension plan amendments, which 21
are not fiduciary actions and therefore do not violate section 22
404(a)(1) of ERISA. Initially, we note that the Appellees took the 23
unnecessary step of filing a cross-appeal to assert this contention. 24
An appellee needs to file a cross-appeal only to request an appellate 25
court to grant some additional relief beyond the judgment entered by 26

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a district court. See Carlson v. Principal Financial Group, 320 F.3d 1
301, 309 (2d Cir. 2003). In the absence of a cross-appeal, an 2
appellee is entitled to seek affirmance on any ground supportable by 3
the record. See Bruh v. Bessemer Venture Partners III L.P., 464 F.3d 4
202, 205 (2d Cir. 2006) (“[W]e may affirm on any basis for which there 5
is sufficient support in the record, including grounds not relied on 6
by the district court.”). For this reason, we will dismiss the cross- 7
appeal as unnecessary, but nonetheless consider the contention that 8
the Appellees have advanced in support of the District Court’s 9
judgment. 10
In 1985, this Court ruled that, with respect to multi-employer 11
pension plans, the act of amending a plan should be treated as a 12
fiduciary function, see Chambless, 772 F.2d at 1040, thereby invoking 13
section 404(a)(1) of ERISA, 29 U.S.C. § 1104(a)(1), which obliges a 14
fiduciary to “discharge his duties with respect to a plan solely in 15
the interest of the participants and beneficiaries.” Ten years later 16
we ruled that amending a single employer pension plan was not a 17
fiduciary function, pointedly distinguishing Chambless on the ground 18
that “[i]n the multi-employer setting, trustees amending a pension 19
plan ‘affect the allocation of a finite plan asset pool’ to which each 20
participating employer has contributed.” See Siskind, 47 F.3d at 506 21
(quoting Musto v. American General Corp., 861 F.2d 897, 912 (6th Cir. 22
1988)). The Appellees contend that the ruling in Chambless and the 23
language in Siskind distinguishing multi-employer plans has been 24
abrogated by the combined effect of three decisions of the Supreme 25
Court: Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73 (1995); 26

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Lockheed Corp. v. Spink, 517 U.S. 882 (1996), and Hughes Aircraft Co. 1
v. Jacobson, 525 U.S. 432 (1999). The Appellants respond that the 2
Chambless/Siskind view of multi-employer plans has survived the later 3
Supreme Court decisions. 4
Resolving this dispute involves consideration of the deference a 5
court of appeals owes to language in Supreme Court opinions that 6
contributes to the Court’s reasoning, even if it does not incorporate 7
a precise holding. See generally Pierre N. Leval, Judging Under the 8
Constitution: Dicta about Dicta, 81 N.Y.U. L. Rev. 1249 (2006) 9
Initially, we note that Curtiss-Wright, Lockheed Corp., and Hughes 10
Aircraft all involved single employer plans. Thus, the Supreme Court 11
had no occasion to rule definitively on whether amending a multi- 12
employer plan was a fiduciary function. Nevertheless, we need to 13
consider carefully what the Supreme Court said in deciding those 14
cases. 15
In Curtiss-Wright, which involved a welfare plan, the Court said, 16
“Employers or other plan sponsors are generally free under ERISA, for 17
any reason at any time, to adopt, modify, or terminate welfare plans.” 18
514 U.S. at 78 (emphasis added). Lockheed Corp. involved a pension 19
benefit plan. The Court said, “We see no reason why the rule of 20
Curtiss-Wright should not be extended to pension benefit plans.” 517 21
U.S. at 890. The Court also declared, “Plan sponsors who alter the 22
terms of a plan do not fall into the category of fiduciaries.” Id. 23
Hughes Aircraft concerned a pension plan to which employees were 24
required to contribute. The Ninth Circuit had thought that this 25
circumstance distinguished Lockheed Corp. and concluded that an 26

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amendment to such a plan was subject to ERISA’s fiduciary standards. 1
See Jacobson v. Hughes Aircraft Co. , 105 F.3d 1288, 1293 (9th Cir. 2
1997) (“[T]the asset surplus that was used in Lockheed to fund the 3
early retirement program was attributable only to employer 4
contributions. Here, plaintiffs allege that the asset surplus Hughes 5
used to fund the early retirement program and the new Non-Contributory 6
Plan was attributable to both employer and employee contributions”). 7
The Supreme Court disagreed. “Our conclusion [in Lockheed Corp.] 8
applies with equal force to persons exercising authority over a 9
contributory plan, a noncontributory plan, or any other type of plan.” 10
Hughes Aircraft, 525 U.S. at 443-44. And, the Court added 11
emphatically, the fiduciary duty claims “are directly foreclosed by 12
[Lockheed’s] holding [sic] that, without exception, ‘[p]lan sponsors 13
who alter the terms of a plan do not fall into the category of 14
fiduciaries.’” Id. at 445 (quoting Lockheed, 517 U.S. at 890). 15
Shortly after Lockheed was decided, the Third Circuit relied on 16
the Supreme Court’s reference to “plan sponsors” to rule that the 17
Court’s decision applies to multi-employer plans. See Walling v. 18
Brady, 125 F.3d 114 (3d Cir. 1997). “ Lockheed speaks of ‘plan 19
sponsors,’ a term that applies to both single-employer sponsors and 20
multi-employer sponsors under ERISA, and the opinion lacks any hint 21
that single- and multi-employer plans should be analyzed differently.” 22
Id. at 117. The Third Circuit also quoted ERISA’s definition of “plan 23
sponsor”: 24

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The term “plan sponsor” means (i) the employer in the case 1 of an employee benefit plan established or maintained by a 2 single employer . . . or (iii) in the case of a plan 3 established or maintained by two or more employers or 4 jointly by one or more employers and one or more employee 5 organizations, the association, committee, joint board of 6 trustees, or other similar group of representatives of the 7 parties who establish or maintain the plan. 8
9 Id. at 118 (quoting 29 U.S.C.A. § 1002(16)(B)). 10
Thereafter, with the benefit of Lockheed Corp. and Hughes 11
Aircraft, the District of Columbia Circuit reached the same 12
conclusion. See Hartline v. Sheet Metal Workers’ National Pension 13
Fund, 286 F.3d 598, 599 (D.C. Cir. 2002). “The Supreme Court made it 14
clear in [Curtiss-Wright, Lockheed, and Hughes Aircraft] that 15
employers and plan sponsors do not act in a fiduciary capacity when 16
they modify, adopt or amend plans. Nothing in the Supreme Court’s 17
decisions or ERISA itself creates an exemption for multiemployer 18
pension plans.” Id. 19
Even before the three Supreme Court decisions, the Sixth Circuit 20
had abandoned dictum in Musto, 861 F.2d at 912, indicating that 21
trustees amending a multi-employer plan act as fiduciaries, and ruled 22
that “amendment of multi-employer plans does not differ from amendment 23
of single-employer plans.” Pope v. Central States Southeast and 24
Southwest Areas Health and Welfare Fund, 27 F.3d 211, 213 (6th Cir. 25
1994). 26
Closer to home, three district courts within the Second Circuit 27
have either questioned or disregarded the continuing validity of our 28

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4 Judge Hurd noted, but disagreed with, the opinion of Judge
Curtin, in the Western District of New York, Burke v. Bodewes, 250 F.
Supp. 2d 262, 270 (W.D.N.Y. 2003), adhering to Chambless and Siskind
after the Supreme Court decisions. See Fuchs, 363 F. Supp. 2d at 416.
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opinions in Chambless and Siskind in light of the Supreme Court’s 1
decisions. In 2005, Judge Hurd, in the Northern District of New York, 2
stated that “the invalidation of . . . Musto . . . leaves the view in 3
Siskind and Chambless without any support in the post-Hughes Aircraft 4
era.” Fuchs v. Allen, 363 F. Supp. 2d 407, 416 (N.D.N.Y. 2005). 4 In 5
that same year, Judge Garaufis, in the Eastern District of New York, 6
ruled that the holdings in Chambless and Siskind cannot survive 7
Lockheed and Hughes Aircraft. See Cement and Concrete Workers District 8
Council Pension Fund v. Ulico Casualty Co., 387 F. Supp. 2d 175, 186 9
(E.D.N.Y. 2005), aff’d on other grounds , 199 F. App’x 29 (2d Cir. 10
2006). Last year, Judge Gardephe, in the Southern District of New 11
York, stated flatly that Chambless and Siskind “have been overruled.” 12
Gannon v. NYSA-ILA Pension Trust Fund and Plan, No. 09-CV-10368, 2011 13
WL 868713, at *8 (S.D.N.Y. Mar. 11, 2011). 14
Although the Supreme Court’s opinions in Curtiss-Wright, 15
Lockheed, and Hughes Aircraft all involved single-employer plans, we 16
agree with the Third, Sixth, and District of Columbia Circuits that 17
the Court’s language analyzing fiduciary duties under ERISA is equally 18
applicable to multi-employer plans. Although it is a somewhat close 19
question whether that language was sufficiently related to the Court’s 20
ultimate rulings to be considered as holdings or only highly 21
persuasive dicta, we now regard it as ample justification to deem it 22
to have abrogated Chambless and Siskind with respect to multi-employer 23

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5Section 1113 provides:
No action may be commenced under this subchapter with
respect to a fiduciary's breach of any responsibility, duty,
or obligation under this part, or with respect to a
violation of this part, after the earlier of –
(1) six years after (A) the date of the last
action which constituted a part of the breach or
violation, or (B) in the case of an omission the
latest date on which the fiduciary could have
cured the breach or violation, or
(2) three years after the earliest date on which
the plaintiff had actual knowledge of the breach
or violation;
except that in the case of fraud or concealment, such action
may be commenced not later than six years after the date of
discovery of such breach or violation.
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plans. Moreover, in the absence of compelling reasons to the 1
contrary, maintaining a circuit split on the issue of trustee 2
liability as fiduciaries for amending multi-employer plans is 3
inadvisable. We therefore conclude that Counts I through V were 4
subject to dismissal because the Defendants were not acting as 5
fiduciaries when they amended the plans. 6
II. Whether Counts VII-IX Are Time-Barred 7
ERISA’s statute of limitations, set out in the margin, 5 provides 8
three alternative limitations periods, depending on the underlying 9
factual circumstances. The first period, applicable in the absence of 10
any special circumstances, is six years from the date of the last 11
action that was part of the breach. The second period is three years, 12
applicable and beginning when a putative plaintiff has “actual 13
knowledge” of the violation, defined as “knowledge of all material 14
facts necessary to understand that an ERISA fiduciary has breached his 15
or her duty or otherwise violated the Act.” Caputo v. Pfizer, Inc., 16

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6Of course, the three-year limitations period may not extend the
viability of claims beyond the outer limit of six years specified in
section 1113(1).
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267 F.3d 181, 193 (2d Cir. 2001). 6 However, “constructive knowledge” 1
of the breach does not trigger the three-year period. See id. at 194. 2
The third period is six years, applicable where a complaint alleges 3
fraud or concealment with the requisite particularity. Relevant to 4
the pending appeal, this six year period is tolled until the plaintiff 5
discovers, or should with reasonable diligence have discovered, the 6
breach. See id. at 190. To successfully plead this “fraud or 7
concealment exception,” a complaint must allege that a fiduciary 8
either “(1) breached its duty by making a knowing misrepresentation or 9
omission of a material fact to induce an employee/beneficiary to act 10
to his detriment; or (2) engaged in acts to hinder the discovery of a 11
breach of fiduciary duty.” Id. Moreover, these allegations must be 12
stated “with particularity,” Fed. R. Civ. P. 9(b), requiring a 13
plaintiff to “specify the time, place, speaker, and content of the 14
alleged misrepresentations,” as well as “how the misrepresentations 15
were fraudulent” and “those events which give rise to a strong 16
inference that the defendant had an intent to defraud, knowledge of 17
the falsity, or a reckless disregard for the truth.” Id. at 191 18
(internal textual alterations, quotation marks, and citations 19
omitted). 20
The issue as to whether Counts VII-IX could be dismissed on 21
motion under Rule 12(b)(6) concerns application of the “fraud or 22
concealment” exception of Section 1113(2). Count VII alleged Santo 23
Scrufari’s improper “weighting” of benefits between late 1992-1993 and 24

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7Count IX asserted substantially the same activity as Count VIII,
which the District Court found adequately alleged fraud or
concealment. Fairly read, the allegations of fraud or concealment in
Count VIII apply to Count IX as well.
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1996. Counts VIII and IX alleged that Scrufari and his son stole 1
money from the Welfare Fund and concealed their actions by 2
fraudulently labeling withdrawals “Scholarship” or “Health Care” 3
benefits. Although Judge Curtin was satisfied that the Plaintiffs had 4
adequately pleaded fraud or concealment, at least with respect to 5
Counts VII and VIII, 7 he concluded, taking judicial notice of the 6
LaScala case, that they knew or should have known of Santo Scrufari’s 7
activities well in advance of June 26, 2003, six years prior to the 8
commencement of this suit. 9
We think that conclusion could not properly be reached at the 10
pleading stage. It is true that theLaScala case concerned misconduct 11
similar to what Scrufari is alleged to have done in this case. 12
However, the prior litigation concerned misconduct occurring no later 13
than October 1992, a period prior to the time during which the 14
misconduct at issue in this case is alleged to have occurred. At 15
most, LaScala creates an issue of fact as to whether the Plaintiffs 16
knew or should have known of Scrufari’s activities between 1993 and 17
1996 based on his activities prior to that time. The resolution of 18
that issue was not proper at the pleading stage. Whether the issue 19
might be resolved on motion for summary judgment after discovery 20
remains to be determined on remand. 21
III. Whether the District Court Properly Denied the Motion to Amend 22
The Plaintiffs-Appellants assert that the District Court erred in 23
denying leave to amend the Complaint. Normally, leave to amend should 24

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be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 1
15(a)(2). However, amendment of a complaint becomes significantly 2
more difficult when a plaintiff waits, as the Plaintiffs in this case 3
did, until after judgment has been entered. “[O]nce judgment is 4
entered the filing of an amended complaint is not permissible until 5
judgment is set aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 6
60(b).” National Petrochemical Co. of Iran, 930 F.2d at 244. “The 7
merit of this approach is that ‘[t]o hold otherwise would enable the 8
liberal amendment policy of Rule 15(a) to be employed in a way that is 9
contrary to the philosophy favoring finality of judgments and the 10
expeditious termination of litigation.’” Id. at 245 (quoting 6 C. 11
Wright & A. Miller, F EDERAL PRACTICE AND PROCEDURE § 1489, at 694 (1990)). 12
Here, the District Court properly denied the motion to amend following 13
its denial of the motion for reconsideration. 14
Because we vacate the District Court’s dismissal of several 15
counts, however, we note that the prior judgment will no longer bar 16
future motions for leave to amend with respect to the surviving 17
claims. 18
Conclusion 19
For the foregoing reasons, the District Court’s dismissal of 20
Counts I-V is affirmed, its dismissal of Counts VII-IX is vacated, and 21
the case is remanded for further proceedings. The cross-appeal is 22
dismissed as unnecessary. 23

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