Vincent Sicre DE FONTBRUNE; Loan Sicre de Fontbrune; Adel Sicre de Fontbrune; Anais Sicre de Fontbrune, in their capacity as the personal representatives of the Estate of Yves Sicre de Fontbrune, Plaintiffs-Appellants, v. Alan WOFSY; Alan Wofsy & Associates, Defendants-Appellees.
No. 14-15790
United States Court of Appeals, Ninth Circuit
September 26, 2016, As Amended on Denial of Rehearing and Rehearing En Banc November 14, 2016
838 F.3d 992
Before: M. MARGARET MCKEOWN and MICHELLE T. FRIEDLAND, Circuit Judges and RICHARD F. BOULWARE, District Judge.
CONCLUSION
The Green Party has not met its burden of showing that Arizona‘s 180-day petition-filing deadline significantly burdens constitutional rights, while the Secretary has demonstrated that the restriction serves Arizona‘s important interest in administering orderly elections. The district court therefore correctly granted summary judgment in favor of the Secretary.
AFFIRMED.
Vincent Sicre DE FONTBRUNE; Loan Sicre de Fontbrune; Adel Sicre de Fontbrune; Anais Sicre de Fontbrune, in their capacity as the personal representatives of the Estate of Yves Sicre de Fontbrune, Plaintiffs-Appellants, v. Alan WOFSY; Alan Wofsy & Associates, Defendants-Appellees.
No. 14-15790
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 9, 2016, San Francisco, California
Filed September 26, 2016
As Amended on Denial of Rehearing and Rehearing En Banc November 14, 2016
lots, or any of the other interconnected deadlines leading up to the primary.
Before: M. MARGARET MCKEOWN and MICHELLE T. FRIEDLAND, Circuit Judges and RICHARD F. BOULWARE,* District Judge.
OPINION
McKEOWN, Circuit Judge:
Justice Holmes once observed that foreign legal systems can appear to the uninitiated “like a wall of stone,” impenetrable and unyielding. Diaz v. Gonzalez, 261 U.S. 102, 106, 43 S.Ct. 286, 67 L.Ed. 550 (1923) (Holmes, J.). For over a century, the federal courts attempted to scale this stone wall by treating questions of foreign law as questions of fact to be pleaded and proved. But over the years, this method proved unsatisfactory, obscuring rather than illuminating the content and nuance of foreign laws. Finally, in 1966, following a proliferation of international litigation,
Despite the clear mandate of the federal rule, this appeal illustrates the difficulty that can arise in determining foreign law and the confusion surrounding the role of foreign law in domestic proceedings. The dispute stems from the transcontinental attempts of Yves Sicre de Fontbrune to protect his copyright in photographs of Pablo Picasso‘s artworks after an American art editor, Alan Wofsy and Alan Wofsy and Associates (collectively, “Wofsy“), reproduced the photographic images. As part of his efforts, de Fontbrune received a judgment in French court of two million euros in “astreinte” against Wofsy for copyright violations. De Fontbrune sought to enforce this astreinte in federal court in California under the
The Picasso photographs — intended to convey the quintessence of Picasso‘s artworks — now require us to delve into the essence of astreinte, a French judicial device. The enforceability of the French award turns on whether, in this case, the astreinte functions as a fine or penalty — which the Uniform Recognition Act does not recognize — or as a grant of monetary recovery — which is statutorily cognizable. The answer to this question is not a simple matter of translation, but, as we explain, requires a broader look at French law to understand the nature of the astreinte remedy in this case, in conjunction with an analysis of California law regarding the enforcement of foreign judgments.
In granting Wofsy‘s Rule 12(b)(6) motion to dismiss de Fontbrune‘s claim, the district court considered the parties’ expert declarations on the nature of astreinte. We disagree with de Fontbrune‘s proposition that consideration of such materials outside the pleadings was error. Rather, under
BACKGROUND
Between 1932 and 1970, Christian Zervos created а “catalogue raisonné”1 featuring photographs of Picasso‘s artistic corpus. The “Zervos Catalog,” which contained almost 16,000 photographs of Picasso‘s art, was ultimately published by Cahiers d‘Art and has become a universally recognized reference work. De Fontbrune purchased Cahiers d‘Art‘s publisher‘s stock in 1979, thereby acquiring intellectual property rights in the Zervos Catalog under French law.
Almost two decades later, Wofsy reproduced several photographs from the Zervos Catalog in two volumes on Picasso, which he offered for sale at a Parisian book fair. De Fontbrune brought suit in French court claiming that these reproductions violated his copyright in the Zervos Catalog.
After a French trial court rejected his claims, de Fontbrune appealed to the Paris Court of Appeal. In a 2001 decision (the “2001 Judgment“), the Court of Appeal concluded that Wofsy wаs “guilty of infringement of copyright and ha[d] infringed on [de Fontbrune‘s] rights.” The court accordingly prohibited Wofsy “from the use in any manner whatsoever of the [Zervos] photographs under penalty of [astreinte] of 10,000 francs by proven infraction,” and required Wofsy “to pay Mr. de Fontbrune 800,000 francs in pecuniary damages in redress of his injury resulting from the infringement of copyright.”2
Ten years later, de Fontbrune filed a claim with an enforcement judge at the Tribunal de Grande Instance de Paris (High Court of Paris) for “[liquidation d‘astreinte] made against [Wofsy] by judgment of the Paris Court of Appeal[ ].” De Fontbrune sought “a judgment ordering [Wofsy] to pay him the sum of 2,000,000 euros from the amount of the [liquidation d‘astreinte].”
In a 2012 decision (the “2012 Judgment“), the enforcement judge found that Wofsy had violated the 2001 Judgment by reproducing copyrighted images from the Zervos Catalog. The judge accordingly “[a]ward[ed] the [astreinte] pronounced by the Paris Court of Appeal[ ] in the amount of 2,000,000 euros,” as well as 1,000 euros in costs.
De Fontbrune then initiated proceedings in California state court seeking recognition of the 2012 Judgment under the Uniform Recognition Act. Wofsy removed the action to federal court on diversity grounds, and filed a motion to dismiss under
Wofsy‘s motion contested the characterization of astreinte as “damages” in the English versions of the 2001 and 2012 Judgments attached to de Fontbrune‘s complaint. Wofsy argued that astreinte functions as a penalty — not as an award of damages — and is thus not cognizable under the Uniform Recognition Act. In support of this assertion, Wofsy supplied a declaration by a French lawyer, Vonnick le Guillou. De Fontbrune countered with a
Faced with conflicting information about the function of astreinte in French law, the district court initially denied Wofsy‘s motion in part, concluding that determining whether astreinte is a “fine, a penalty, damages, or something else ... require[d] an analysis of French law” that would be “premature at [the] pleadings stage.” The district court also declined to consider Guillou‘s declaration under
After Wofsy filed a motion for reconsideration, together with a reply declaration from Guillou, the district court reversed course. This time around, the district court concluded that “its previous finding сoncerning judicial notice of foreign law was in error” and vacated the order denying Wofsy‘s motion to dismiss. In a complete volte face, the district court reasoned that
Taking these declarations into consideration, the court determined that the primary purpose of the astreinte was not to compensate de Fontbrune for the damages he suffered, but to compel Wofsy‘s compliance with the 2001 Judgment. The court concluded that the astreinte thus functioned as a penаlty and so was not cognizable under the Uniform Recognition Act. De Fontbrune now appeals from the district court‘s dismissal of the action with prejudice.3
ANALYSIS
The district court‘s vacillation illustrates the lingering uncertainty surrounding the role of foreign law in domestic proceedings, even after the advent of
I. Foreign Law under Rule 44.1
A party who intends to raise an issue about a foreign country‘s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under thе Federal Rules of Evidence. The court‘s determination must be treated as a ruling on a question of law.
The Rule‘s requirements are intended to be “flexible and informal” to “encourage the court and counsel to regard the determination of foreign law as a cooperative venture requiring an open and unstructured dialogue among all concerned.” Wright & Miller at § 2444.
We have likewise stressed the district court‘s independent obligation to adequately ascertain relevant foreign law, even if the parties’ submissions are lacking. See Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036, 1039 (9th Cir. 1999) (noting “it is not novel for an appellate court ... to determine that a district court performed an inadequate inquiry” into foreign law (citing Twohy, 758 F.2d at 1193)). Independent research, plus the testimony of foreign legal experts, together with extracts of foreign legal materials, “has been and will likely continue to be the basic mode” of determining foreign law. Id. at 1038. Importantly, such material and testimony may be considered “at any time,
Yet despite
The application of
In light of the lingering conflicts in the application of
Since matters outside the pleadings are often required to determine foreign law, summary judgment may appear at first blush to be the appropriate mechanism for dismissing a claim when foreign law applies. Grice v. A/S J. Ludwig Mowinckels, 477 F.Supp. 365, 367 (S.D. Ala. 1979). The continued misplaced emphasis on the parties’ burden of proving foreign law, the frequently intertwined factual questions, and the sheer complexity of ascertaining foreign law all might superficially support this conclusion. But it would be antithetical to the language and purpose of
The general prohibition against looking at matters beyond the complaint to resolve a
The Rule authorizes courts to conduct independent research outside the parties’ submissions in determining foreign law. Its deliberately “flexible procedures for presenting and utilizing material on issues of foreign law,”
Importantly, because foreign law interpretation and determination is a question of law, independent judicial research does not implicate the judicial notice and ex parte issues spawned by independent factual research undertaken by a court. See Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 270-72 (1944) (explaining that, while the “judge is unrestricted in his investigation and conclusion” in determining the content of legal rules, “[t]he situation as to disputed and disputable issues of fact is different,” and the judge is not “permitted to make an independent investigation“); see also Rowe v. Gibson, 798 F.3d 622, 641 (7th Cir. 2015) (Hamilton, J., dissenting) (noting that looking at facts outside the record “turns the court from a neutral decision-maker into an advocate for one side“); Blunt v. United States, 244 F.2d 355, 365 (D.C. Cir. 1957) (warning that adding to the record “t[akes] on the aspect of advoсacy“).
Judicial research into domestic law provides an appropriate analog. Although our common law system relies heavily on advocacy by the parties, judges are free to undertake independent legal research beyond the parties’ submissions. It is no revelation that courts look to cases, statutes, regulations, treatises, scholarly articles, legislative history, treaties and other legal materials in figuring out what the law is and resolving legal issues. Independent judicial research into the content of foreign law thus leaves undisturbed a bedrock principle of our adversarial system — that “adversarial testing is the surest route to truth,” and the failure to expose facts to such rigorous testing “can undermine the quality of [factual] findings.” Brianne J. Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 Duke L. J. 1, 3, 6 (2011). Rather, determining foreign law — like determining domestic law — requirеs “adequate study,” without which there can be neither the “adequate reflection” nor “that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions.” Salve Regina Coll. v. Russell, 499 U.S. 225, 232, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (quoting Dick v. N.Y. Life Ins. Co., 359 U.S. 437, 458-59, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959) (Frankfurter, J., dissenting)).
Two of our sister circuits appear to have tacitly endorsed this interpretation of
Thus, we hold that courts do not transgress the broad boundaries established by
II. California‘s Uniform Recognition Act
The district court erred in concluding that “the award of an astreinte in this case constitutes a penalty for purposes of the [Uniform Recognition Act].” To explain why this is so, we first review the requirements governing the recognition of Foreign-Court monetary judgments under California law and then consider the nature of the astreinte in the judgment at issue. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (all questions of law, including questions of foreign law, are reviewed de novo).
California‘s Uniform Recognition Act governs the enforcement of foreign-country judgments that (1) grant or deny monetary recovery and (2) are “final, conclusive, and enforceable” under the law of the jurisdiction where rendered.
The prescription against recognizing or enforcing penal laws focuses on whether the character of the foreign judgment is essentially punitive or compensatory. See, e.g., Restatement (Second) of Conflicts of Laws § 89 & cmt. a (1971) (explaining that the “narrow” prohibition “applies only to actions brought for the purpose of punishing the defendant for a wrong done by him” and “does not apply to actions brought by a private person ... to recover compensation for a loss“); Restatement (Third) of Foreign Relations Law § 483 cmt. b (1987) (“A penal judgment ... is primarily punitive rather than compensatory in character.“). The prohibition “reflect[s] a reluctance of courts to subject foreign public law to judicial scrutiny combined with reluctance to enforce law that may conflict with the public policy of the forum state.... [and] distrust of foreign criminal procedures.” Restatement
Adopting the test articulated by the Supreme Court in Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892), the California courts likewise concentrate on the character of a foreign judgment. Java Oil Ltd. v. Sullivan, 168 Cal.App.4th 1178, 86 Cal.Rptr.3d 177, 183 (2008). In Huntington, the Supreme Court explained that determining whether a foreign law is “a penal law, in the international sense, so that it cannot be enforced in the courts of another state, depends upon ... whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act.” 146 U.S. at 673-74, 13 S.Ct. 224. This inquiry entails consideration of whether the harm the foreign judgment seeks to redress is private or public. Private harms “are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals,” whereas public harms “are a breach and violation of publiс rights and duties, which affect the whole community, considered as a community.” Id. at 668-69, 13 S.Ct. 224 (quoting 3 William Blackstone, Commentaries *2).
The Court acknowledged the elasticity of the terms “penal” and “penalty” in both the British and American systems, noting that, while these terms “[s]trictly and primarily ... denote punishment ... imposed and enforced by the state for a crime or offense against its laws,” they also commonly encompass “any extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged.” Id. at 666-67, 13 S.Ct. 224. The Court emphasized that, for purposes of recognition and enforcement, “[p]enal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which ... the executive of the state has the power to pardon.” Id. at 667, 13 S.Ct. 224. In contrast, “[s]tatutes giving a private cause of action against the wrongdoer are sometimes spoken of as penal in their nature, but ... neither the liability imposеd nor the remedy given is strictly penal.” Id.
The Court cautioned against being misled by nomenclature, emphasizing that the crux of the analysis is not whether a judgment is termed penal or a penalty by “the courts of the [country] in which it was passed, but whether it appears, to the tribunal which is called upon to enforce it, to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person.” Id. at 683, 13 S.Ct. 224. This admonition recognizes that translation will always be incomplete, because the “resonances from centuries of legal, political, and literary use” that necessarily accompany any legal term can never be fully transferred by translation alone. John E. Joseph, Indeterminacy, Translation and the Law, in 8 Translation and the Law 13, 17 (Marshall Morris ed., 1995).
In undertaking the Huntington inquiry, California uses a nuanced balancing test to determine whether the “essential character and effect” of an award is penal — an approach that acknowledges that courts must consider more than how a term is translated to understand the nature of a foreign judgment. The Java Oil test thus looks to a number of factors, including: (1) whether the purpose of the award is to compensate an individual or to “provide an example” or punish “an offense against the public“; (2) whether the award is payable to an individual or to the state or one of its organs; (3) whether the judgment arose in the context of a civil action or through the enforcement of penal laws; and (4) whether the award was a “mandatory fine, sanction, or multiplier.”
No one factor is determinative, and, not surprisingly, the same factors may point in differing directions. In Hyundai, for example, Hyundai Securities sought enforcement of a Korean judgment that included indemnification for a criminal fine the company had paid on behalf of Ik Chi Lee, its former CEO. 182 Cal.Rptr.3d at 266-67. Lee argued that, because the indemnification order was based on a criminal fine, it was penal in nature and not cognizable under the Act. Id. at 267. The California Court of Appeal disagreed, reasoning that the purpose of the Korean judgment was “to compensate Hyundai for the damages it suffered from having to pay a fine,” and that “the prohibition against the recognition of a judgment based on a fine ... does not include an award to compensate a plaintiff.” Id. at 1387, 1389.
III. The Nature of the Astreinte in the French Judgment against Wofsy
With the Java Oil factors in mind, we turn to the nature of the astreinte in the French legal system generally and more particularly in the judgment against Wofsy. Heeding our own advice, we consider the judgment itself, the expert declarations and materials on the astreinte submitted to the district cоurt by de Fontbrune and Wofsy, as well as our own research into American and French law.
At the outset, we note that the astreinte is a “device that may appear rather strange” to common law lawyers. An Introduction to French Law 234 (George A. Bermann & Etienne Picard eds., 2008). It currently occupies a role of considerable procedural and substantive complexity. M.P. Mitchell, Imperium by the Back Door: The Astreinte and the Enforcement of Contractual Obligations in France, 51 U. Toronto Fac. L. Rev. 250, 259 (1993). Unsurprisingly, then, the astreinte cannot be neatly categorized as either essentially penal or wholly civil in nature. It is hybrid, with elements that cut both ways.
To begin, we emphasize that we cannot ascertain whether the astreinte is a “fine or other penalty” simply by turning to translations or dictionary definitions. Citing the Dictionnaire Juridique Français-Anglais and the Council of Europe French-English Legal Dictionary, Wofsy‘s counsel argued that “astreinte means a fine for noncompliance with a judgment.” But the test is not whether astreinte is translated as “fine” or “penalty.” Rather, we must look to “whether it appears, to the tribunal which is called upon to enforce it, to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person.” Huntington, 146 U.S. at 683, 13 S.Ct. 224. Dictionaries may be a starting point, but in this case are of limited utility in looking beneath the surface to determine the “essential character and effect” of the foreign judgment. Indeed, the limitations of terminology for understanding the character and purpose of a foreign award is reflected in the nuanced nature of the Java Oil test. Although the Uniform Recognition Act prohibits recognition of a “fine[] or other penalty,” the Java Oil factors do not rely on this vocabulary to determine what judgments fall within the Act‘s exception to enforcement. We must accordingly be cautious about falling back on bald nomenclature аs providing a definitive category in lieu of undertaking the indepth analysis of foreign judgments required by Java Oil.
On the other hand, the Mesnooh declaration states that the astreinte is “imposed by a judge, always for an amount of money, ordering a party which is subject to a court order to do something ... to comply with such order.” An astreinte can thus be awarded only in connection with a valid and enforceable legal duty. According to Mesnooh, the astreinte is a “personal remedy,” payable entirely to the party seeking enforcement of an astreinte, not to the court or any other part of the French State. The amount is “within thе discretion of the judge,” and “can be modified before it is reduced to judgment.” Although not “a grant of a civil right to a private person,” the astreinte is not a punishment for a crime against the public, either. It is awarded, rather, “for the sole benefit of” the party seeking the remedy.
The experts’ recitations, which sometimes overlap, are useful in laying out some of the characteristics of the astreinte. However, with the exception of parts of the Mesnooh declaration, they do not provide the answer to our state law inquiry. Additional explanatory materials indicate that French judges devised the astreinte as a “coercive sanction which operates in its own right to secure enforcement of a judgment.” Michael Chesterman, Contempt: In the Common Law but not the Civil Law, 46 Int‘l & Comp. L. Q. 521, 545 (1997). The astreinte is now widely used in the French legal system “to obtain the performance of any type of obligation ... for matters civil or commercial, and also in administrative matters including those in which the party owing performance is the state or a public body.” James Gordley & Arthur von Mehren, An Introduction to the Comparative Study of Private Law 533 (2006). In this regard, as Guillou noted, astreinte can be seen as analogous to contempt of court.4 The protean nature and wide applicability of astreinte warns against a blanket determination that the device is always either punitive or compensatory. Rather, we must consider a particular astreinte in the context in which it was awarded.
In the 2001 Judgment, the Paris Court of Appeal awarded both forms of civil remedies — that is, pecuniary damages for de Fontbrune‘s injury and an injunction against future reproductions of the Zervos Catalog images under an astreinte. The court did not, however, impose any of the criminal sanctions provided for in the Intellectual Property Code. Thus, the astreinte was not awarded pursuant to the court‘s authority to criminally punish copyright violations under the Intellectual Property Code through imposing an amende.
The astreinte was awarded separately and apart from the pecuniary damages awarded by both the Paris Court of Appeal and the enforcement judge. The enforcement judge expressly referenced Articles 35 and 36 of the Law of 9 July 1991,5 pursuant to which any French judge could order liquidation d‘astreinte, “taking into consideration the behaviour of the party to whom the injunction has been addressed, and the difficulties that he or she has encountered in executing it.”
Ultimately, the purpose of the astreinte was to set a sum, per violation, for Wofsy‘s failure to comply with the judicial prohibition on the continued use of de Fontbrune‘s copyrighted photographs. In this sense, it may be likened to a civil contempt order. The California Supreme Court has clarified that the primary object of civil contempt “is to protect the rights of litigants.... Civil contempt is a forward-looking remedy imposed to coerce compliance with a lawful order of the court.” In re Nolan W., 45 Cal.4th 1217, 91 Cal.Rptr.3d 140, 203 P.3d 454, 466 (2009) (internal quotations and citations omitted). Civil contempt orders are thus “remedial,
Cast in another light, the astreinte here may also be seen as fulfilling a function akin to statutory damages in American copyright law, although we acknowledge that de Fontbrune was awarded damages separately. In the U.S. system, a party may opt for an award of statutory damages rather than actual damages.
The remaining Java Oil factors weigh in favor of our conclusion that the astreinte was not essentially penal in nature. Significantly, the astreinte awarded was payable directly to de Fontbrune, rather than to a court or the French state. As the Mesnooh declaration noted, an astreinte creates a “debt belonging to the party which is condemned [to pay the astreinte].” The result is that “the beneficiaries of the underlying award [for damages] becomes a creditor for the amount of the astreinte.” See Francois Chabas, Régime de la Réparation: JurisClasseur Civil Code Article 1382-1386 ¶ 97 (2001).
Turning to the nature of the proceedings, the astreinte here was awarded in the context of a civil action in order to enforce a civil remedy provided for in the French Intellectual Property Code. No criminal or penal proceedings were involved. And, finally, the award was not a mandatory fine, sanction or multiplier. Indeed, an astreinte‘s “effectiveness is ... a function of the choice of the amount which is freely determined by the judge.” Gordley & von Mehren, supra, at 532. In fact, the enforcement judge accepted a reduction of the astreinte to 2,000,000 euro, which is consistent with the notion that she retained final discretion to determine the amount. In all, the astreinte was not essentially “a punishment of an offense against the public;” rather, it “afford[ed] a private remedy to [de Fontbrune,] a person injured by the wrongful act.” See Huntington, 146 U.S. at 673-74, 683, 13 S.Ct. 224.6
Four factors suggested that the astreinte at issue in Yahoo! was penal rаther than compensatory in character. First, the word astreinte was consistently translated as “penalty.”7 Id. at 1219. Second, the sanctions were imposed for violations of the French Penal Code, “which declares it a ‘crime’ to exhibit or display Nazi emblems, and which prescribes a set of ‘criminal penalties,’ including fines.” Id. In other words, the penalty in Yahoo! was imposed for “a breach and violation of public rights and duties, which affect the whole community, considered as a community.” Huntington, 146 U.S. at 668-69, 13 S.Ct. 224 (quoting 3 William Blackstone, Commentaries *2). Third, the penalties imposed by the French court were expressly intended to deter Yahoo! from creating a “threat to internal public order” — obviously, an issue of public interest affecting the whole community, not solely related to a private dispute. Yahoo!, 433 F.3d at 1220. As we noted, such judgments “designed to deter conduct that constitutes a threat to the public order are typically penal in nature.” Id. Finally, thе astreinte was payable to the government and not a private individual or group — further underscoring the public nature of award. Id. Here, in contrast, the astreinte was imposed in the context of a civil action for contravening an injunction against the use of copyrighted materials and was payable to the individual copyright holder.
For the foregoing reasons, we hold that the astreinte awarded by the French courts to de Fontbrune falls within the Uniform Recognition Act as a judgment that “[g]rants ... a sum of money.”
REVERSED AND REMANDED.
ORDER
THOMAS, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc pursuant to
Judge Ikuta did not participate in the deliberations or vote in this case.
M. MARGARET MCKEOWN
UNITED STATES CIRCUIT JUDGE