Donte Parrish v. United States

USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 1 of 17 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1766 DONTE PARRISH, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Senior District Judge. (1:17-cv-00070-IMK) Argued: September 17, 2026 Decided: October 19, 2026 Before NIEMEYER, GREGORY, and RICHARDSON, Circuit Judges. Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Gregory and Judge Richardson joined. ARGUED: Alexa Rae Baltes, JONES DAY, Chicago, Illinois, for Appellant. William Rhee, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. ON BRIEF: Amanda K. Rice, Detroit, Michigan, Daniel C. Loesing, Columbus, Ohio, Samuel V. Lioi, Amanda R. Parker, JONES DAY, Cleveland, Ohio, for Appellant. Jordan V. Palmer, Assistant United States Attorney, Erin K. Reisenweber, Assistant United States Attorney, Christopher J. Prezioso, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 2 of 17 NIEMEYER, Circuit Judge: While incarcerated in a federal prison, Donte Parrish commenced this action pro se for damages against the United States in April or May 2017 — the date is disputed — under the Federal Tort Claims Act (FTCA), alleging that he was wrongfully charged and placed in segregated confinement for the killing of another inmate. The district court granted the government’s motion to dismiss Parrish’s amended complaint, concluding that at least one of Parrish’s claims was time-barred under 28 U.S.C. § 2401(b) and that Parrish had failed to administratively exhaust his other claims, as required by 28 U.S.C. § 2675. On appeal, we concluded in a prior decision that we lacked jurisdiction based on when Parrish filed his notice of appeal. See Parrish v. United States, 74 F.4th 160 (4th Cir. 2023). The Supreme Court, however, reversed that ruling, holding that although Parrish’s notice of appeal was filed too late with respect to the original appeal deadline, the notice automatically related forward once the district court reopened the time to appeal, thus making it timely. See Parrish v. United States, 605 U.S. 376 (2025). Accordingly, the Court remanded the case back to us. Following remand, the parties filed supplemental briefs, and we again heard oral arguments on the issues of whether Parrish’s claims were barred by the statute of limitations or were unexhausted. Because the parties agree that Parrish’s tort claims are governed by the principles of Heck v. Humphrey, 512 U.S. 477, 489–90 (1994) (holding that “a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated”), we conclude that Parrish’s claims did 2 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 3 of 17 not accrue until January 25, 2017, at the earliest, when the record for the charges against him was expunged. Thus, his complaint filed in April or May 2017 was filed within the six-month statute of limitations set forth in 28 U.S.C. § 2401(b) and was therefore timely. Moreover, at least some of the claims found untimely were clearly administratively exhausted, although we leave it to the district court on remand to determine whether all were exhausted. Accordingly, we vacate the district court’s judgment and remand for further proceedings consistent with this opinion. I In 2007, after Parrish was convicted for using a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c), he was assigned to USP Hazelton in Bruceton Mills, West Virginia, to serve a 180-month sentence. On December 6, 2009, while Parrish was still incarcerated at Hazelton, a group of inmates in a common area attacked and killed another inmate, Jimmy Lee Wilson, during what Parrish characterizes as “a riot between black and white inmates.” A prison official reviewed the video footage of the incident and issued an incident report alleging that Parrish and four other inmates were responsible for Wilson’s death. The incident report charged Parrish with “Killing (Code 100)” and “Being in an Unauthorized Area (Code 316).” But due to the nature of the “Killing” charge, the Bureau of Prisons (BOP) referred the incident to the FBI and the U.S. Attorney’s Office and suspended its internal disciplinary process while that review was pending. 3 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 4 of 17 Parrish claims that because he was alleged to have been involved in Wilson’s killing, prison officials immediately placed him in a restrictive administrative lockdown where he was separated from the general prison population and held from the time of Wilson’s death in December 2009 until November 2012 — almost three years — even though the disciplinary charge against him remained on hold. After Parrish filed a grievance and administrative appeal alleging that he was “being forced to serve an indefinite sentence on lock down,” in violation of his due process rights, he was transferred back to the general prison population in November 2012. Two and a half years later, in June 2015, the FBI and the U.S. Attorney’s Office determined that they would not pursue criminal charges against Parrish, and prison officials then revived their internal disciplinary process and conducted a hearing on the charges against Parrish in August 2015. Initially, a disciplinary hearing officer found that Parrish had committed the charged offenses, but on Parrish’s appeal, a BOP Regional Director, by decision dated June 3, 2016, remanded the incident report for a rehearing. In so doing, however, the Regional Director incorrectly stated that Parrish had been charged with and found to have committed the offense of “Assisting in Killing (Code 100A),” rather than “Killing (Code 100).” Based on that discrepancy, Parrish filed his first administrative tort claim on September 1, 2016 — referred to by the parties as “Claim 283” based on the last three digits of the claim number assigned to it. Asserting “abuse of process,” Parrish alleged that the BOP Regional Director had “misuse[d] [the] legal process” by remanding for a rehearing on a new offense with which he had never been charged and that doing so 4 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 5 of 17 “changed the whole landscape of the charge.” By letter dated September 14, 2016, the BOP denied Claim 283, but the letter failed to inform Parrish that he had six months to file a civil action, as required by the FTCA. The letter stated instead that he could request reconsideration if he presented additional evidence. Instead of seeking reconsideration, Parrish filed a second administrative tort claim against the BOP on September 23, 2016 — referred to by the parties as “Claim 710” — which was broader than Claim 283 and asserted “wrongful confinement/false imprisonment.” Specifically, in Claim 710, Parrish alleged that he had been wrongfully held in administrative detention from December 2009 until November 2012 based on his alleged role in Wilson’s killing and that he was not “given a chance to contest” the charges against him. He further alleged that the incident report itself indicated that his conduct had not caused Wilson’s death, but he nonetheless remained charged with his killing. Parrish also alleged that he had been racially harassed by BOP staff “who took . . . personal offense to the fact that the victim was white and [Parrish] was black.” And finally, Parrish alleged that as a result of being in segregated confinement for nearly three years, he had suffered both physical and mental injuries and been denied access to the courts. He sought $5 million in “personal injury” damages. The BOP denied Claim 710 in a letter dated October 7, 2016, stating that “[a]n investigation into your claim failed to reveal that you suffered a compensable personal injury due to the negligence of staff during the performance of their duties.” This time, however, the BOP included in its letter the advice to Parrish that “[i]f [he were] not satisfied with [its] determination in this matter, [he] [could] file suit in the appropriate U.S. District 5 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 6 of 17 Court not later than six months after the date of this letter,” i.e., by April 7, 2017. Thereafter, on January 25, 2017, a BOP disciplinary hearing officer conducted a new hearing on the two charges set forth in the original 2009 incident report — i.e., Killing (Code 100) and Being in an Unauthorized Area (Code 316) — and the hearing officer found that “[n]o prohibited act was committed,” explaining that there was “insufficient evidence to make a finding.” The hearing officer “therefore expunged” the incident report from Parrish’s record. Parrish commenced this action pro se by filing a complaint in April or May 2017. He dated the complaint April 7, 2017, and later stated that he had handed it to a prison official for mailing on that date. The cancellation stamp on the envelope, however, showed that the complaint was mailed to the district court on May 1, 2017, and the district court received it on May 3, 2017. In an amended complaint, again filed pro se, Parrish clarified the original complaint, setting forth five claims: (1) a false-imprisonment claim, based on his allegation that the 2009 “incident report never established probable cause to detain [him] for murder” but that after the charge was “suspended pending FBI investigation,” he was nonetheless kept “on administrative detention [for] roughly three years while the matter was out of [the BOP’s] jurisdiction”; (2) an abuse-of-process claim, based on his allegation that prison officials had “misused the process of Administrative Detention” in order to detain him “in a disciplinary manner,” leading to him being “confined illegally . . . [on] lockdown [23 hours a day] for 3 [years]”; (3) an intentional infliction of emotional distress claim, based on his allegation that prison officials intentionally kept him confined, denied him access to friends 6 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 7 of 17 and family, and subjected him to racial harassment; (4) a negligence claim, based on his allegation that prison officials “were negligent in failing to review [his] case and releas[e] [him] [from administrative detention] in an orderly fashion”; and (5) a malicious prosecution claim, based on his allegation that prison officials “were set on prosecuting [him] for the charge of murder when there was no probable cause.” For relief, Parrish demanded $5 million in compensatory damages, the amount claimed in administrative Claim 710. The government filed a motion to dismiss Parrish’s complaint, contending that the action was untimely under 28 U.S.C. § 2401(b) because Parrish had failed to file his original complaint within six months of the BOP’s October 7, 2016 denial of Claim 710. While the six-month window closed on April 7, 2017, and Parrish had dated his complaint on that date, the government argued that Parrish had not mailed his complaint until May 1, 2017, as shown on the cancellation stamp on the envelope. The government supported its argument with a declaration from a BOP employee who stated that, at the federal prison where Parrish was incarcerated at the time (USP Big Sandy in Inez, Kentucky), inmates’ outgoing mail was collected and mailed every weekday morning. In response, Parrish stated in a declaration that he had mailed his complaint to the district court on April 7, 2017, by handing it to a prison guard on that date and that USP Big Sandy’s mail system was unreliable. Alternatively, he argued that the statute of limitations for his FTCA claims was tolled until January 25, 2017, which, he argued, was the “accrual date” for his tort claims because that was “when his incident report was expunged and his good time restored.” To make that argument, he relied on Heck v. 7 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 8 of 17 Humphrey, which held that “a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.” 512 U.S. 477, 489–90 (1994). By order dated January 16, 2019, the district court granted the government’s motion in part and denied it in part, concluding that the claims Parrish presented to the BOP in his second administrative tort claim, Claim 710, were time-barred under 28 U.S.C. § 2401(b). The court reasoned that the BOP had mailed its final denial of the claims in Claim 710 on October 7, 2016, and that Parrish’s complaint had not been received by the district court until May 3, 2017, i.e., several weeks after the six-month deadline had passed. The court acknowledged Parrish’s argument that, under Heck, his “‘wrongful confinement/false imprisonment’ claims did not accrue until January 25, 2017, ‘when [he] got the rehearing charges thrown out and expunged from [his] record,’” and it appeared to accept his argument that the principles of Heck applied to his FTCA claims. But the court concluded nonetheless that Parrish’s claims had “accrued on June 3, 2016,” the date on which the BOP Regional Director remanded the incident report for rehearing, concluding that that was “the date on which Parrish’s administrative appeal regarding [his] detention was granted, his record was expunged, and his good time credit was restored.” The court also rejected Parrish’s separate argument that his complaint was timely filed under the “prison mailbox rule” on April 7, 2017, reasoning that the doctrine did not apply to FTCA claims and alternatively finding that the record belied Parrish’s assertion that he had given his complaint to prison officials for mailing on April 7. 8 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 9 of 17 As to Claim 283, the court concluded that Parrish’s claims were not barred by the statute of limitations since the BOP had not advised him of the six-month filing window, which, it reasoned, was required to trigger the running of that time limitation. Accordingly, the court allowed Parrish’s complaint to proceed to the extent that it was based on claims presented in his first administrative tort claim, Claim 283, but not on Parrish’s second administrative tort claim, Claim 710, because the claims presented in the latter were time- barred. In a subsequent opinion dated March 23, 2020, however, the court concluded that none of the claims set forth in Parrish’s complaint had in fact been presented in Claim 283. The court held that while Parrish’s false imprisonment claim was set forth in Claim 710 and had been exhausted, that claim was time-barred. As to the remaining claims, the court held that Parrish had failed to exhaust administrative remedies because those claims had not been presented in Claim 283, “the only timely . . . administrative claim remaining in this case.” Accordingly, the court dismissed those claims as unexhausted. From the district court’s final judgment dated March 24, 2020, Parrish filed this appeal, which we now consider. II In his administrative Claim 710, Parrish asserted that he was wrongly confined and falsely imprisoned when the BOP placed him on administrative lockdown in a special housing unit separate from the general prison population for almost three years for his alleged killing of Wilson. And in his complaint, which, under the mailbox rule, he filed 9 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 10 of 17 on either April 7, 2017, or May 1, 2017, he relied on the same basic factual allegations to allege claims for false imprisonment, abuse of process, and malicious prosecution, among others. In its January 16, 2019 order, the district court ruled that the claims in Parrish’s complaint that had been presented in administrative Claim 710 were barred by the statute of limitations in 28 U.S.C. § 2401(b) because his complaint was filed more than six months after Claim 710 was denied. In challenging this ruling on appeal, Parrish presents three arguments. First, he maintains that § 2401(b) includes two limitations periods — (1) a two-year period for filing an administrative claim beginning when the claim accrues and (2) a six-month period for filing a complaint beginning when the claim was finally denied by the agency — and that only one of those limitation periods need be satisfied. He argues that this is indicated by the text of the statute, which uses the disjunctive “or” in specifying those limitation periods. Since he clearly satisfied the two-year limitation period, he argues, we need not address the six-month limitation period. Second, he argues that even if the six-month period is applicable to him, he satisfied it because, under Heck, his claims did not accrue until January 25, 2017, when the record on the killing charge was expunged. Thus, he maintains, his action commenced in April or May 2017 fell within the six-month limitation period and therefore was timely. And third, if we conclude that October 7, 2016, when the BOP denied his claim, was the start of the six-month limitation period after all, he contends that his action was timely to the day under the mailbox rule because he commenced it on April 7, 2017, when he gave his complaint to prison officials for mailing to the court, even though the officials did not mail it until May 1, 2017. 10 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 11 of 17 A In advancing his argument that he need not satisfy the six-month limitation period because he clearly satisfied the two-year period, Parrish contends that the text of § 2401(b) sets forth those limitation periods in the disjunctive. The statute reads: A tort claim against the United States shall be forever barred [1] unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or [2] unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b) (emphasis added). Parrish maintains that as a linguistic matter, even though the statute bars claims with respect to the failure to satisfy two periods, A or B, which usually requires satisfaction of both A and B, the statute here distinctively uses the word “unless” twice — barring claims unless A or unless B. Thus, he argues that his action is saved by satisfying either A or B. There is much to say for his argument. See Page v. Comey, 137 F.4th 806, 829–31 (D.C. Cir. 2025) (Henderson, J., concurring in part and dissenting in part). But we also recognize that it has been rejected by every decision construing § 2401(b) and is undermined by the provision’s legislative history. See, e.g., Sconiers v. United States, 896 F.3d 595, 598 (3d Cir. 2018) (“[B]oth conditions must be satisfied in order for a plaintiff to properly bring a claim under the FTCA”); Sanchez v. United States, 740 F.3d 47, 50 n.6 (1st Cir. 2014) (“We read this disjunctive language [of Section 2401(b)] as setting out two deadlines, both (not just either) of which must be satisfied”); Ellison v. United States, 531 11 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 12 of 17 F.3d 359, 362–63 (6th Cir. 2008) (“A statute that precludes an action if the claimant (disjunctively) fails to meet either of two requirements generally will come to the same end as a statute that requires the claimant (conjunctively) to fulfill both requirements. . . . [Section 2401(b)] bars claims that fail to meet either deadline”); Houston v. U.S. Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987) (“Though phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years and file suit within six months of its denial”); Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984) (“Section 2401(b) establishes two . . . hurdles, both of which must be met. . . . If either requirement is not met, suit will be time barred”); Willis v. United States, 719 F.2d 608, 609–13 (2d Cir. 1983) (considering the legislative history and concluding that § 2401(b) requires that both deadlines be met); Schuler v. United States, 628 F.2d 199, 201–02 (D.C. Cir. 1980) (en banc) (per curiam) (requiring that both deadlines be met); see also S.R. Rep. No. 89-1327, at 8 (1966), as reprinted in 1966 U.S.C.C.A.N. 2515, 2522 (“The amendments have the effect of simplifying the language of section 2401 to require that a claimant must file a claim in writing to the appropriate Federal agency within 2 years after the claim accrues, and to further require the filing of a court action within 6 months of notice . . . of a final decision of the claim by the agency to which it was presented”). Indeed, we have probably joined the flock. See Raplee v. United States, 842 F.3d 328, 330, 333 (4th Cir. 2016) (holding that a complaint was untimely because it was not filed within six months of agency denial); see also Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986) (reciting the two limitation periods in § 2401(b) in the conjunctive). And the 12 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 13 of 17 Supreme Court has likewise described § 2401(b) as establishing two mandatory limitations periods. See United States v. Kwai Fun Wong, 575 U.S. 402, 405 (2015). We need not resolve this issue here, however, because we agree with Parrish on his second argument that his tort claims were governed by the principles of Heck v. Humphrey and therefore did not accrue until the agency action was invalidated — here, when the record on the killing charge was expunged. B In Heck, the Supreme Court held that “a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.” 512 U.S. at 489–90. While the holding in Heck involved damages claims under § 1983, rather than claims under the FTCA, we conclude that the Heck principle extends to at least certain tort claims brought under the FTCA. Indeed, in reaching its holding, the Heck Court drew from “the common-law cause of action for malicious prosecution” and its requirement of proof that the prior criminal proceeding have been terminated in favor of the accused, so as to “avoid[] parallel litigation over the issues of probable cause and guilt” and “preclude[] the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution.” Id. at 484 (cleaned up). The Court concluded that “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to 13 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 14 of 17 actions for malicious prosecution.” Id. at 486; see also Edwards v. Balisok, 520 U.S. 641, 646 (1997) (extending Heck to a § 1983 claim where “[t]he principal procedural defect complained of by [a state prisoner] would, if established, necessarily imply the invalidity of the deprivation of his good-time credits,” rather than his underlying conviction or sentence). It thus appears clear to us that Heck’s accrual principle applies to at least some of Parrish’s tort claims. Moreover, neither of the parties contest applying Heck to all of Parrish’s claims. The district court similarly accepted Heck’s application but concluded that the expungement of Parrish’s record occurred on June 3, 2016, rather than on January 25, 2017. Parrish, of course, has relied on Heck principles to justify the timeliness of his complaint. And the government too agrees to Heck’s application. In its first brief, the government stated, “Heck v. Humphrey applies in this context, which means that Parrish’s tort claims were not cognizable until his disciplinary record was expunged.” (Citation omitted). Again, in its supplemental brief, the government stated, “Heck itself states that a claim is not cognizable until a disciplinary record is expunged” and “Heck v. Humphrey means that a claim [was] not cognizable until [Parrish’s] disciplinary record was expunged.” The government further concedes, “January 25, 2017 appears to be the correct date of accrual,” rather than the earlier date identified by the district court. We thus accept Parrish’s argument and the government’s concession that the principles of Heck v. Humphrey apply to Parrish’s tort claims and that the six-month 14 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 15 of 17 limitations period in § 2401(b) did not begin to run until those claims had accrued with the expungement of his record. The parties correctly agree that the original incident report charging Parrish with Wilson’s killing was not expunged until January 25, 2017, at the earliest. Indeed, the government has suggested that the date when the expungement was actually effected — October 18, 2017 — might be the better date for when the limitations period began, although it agrees to the January 25, 2017 date. Because Parrish’s tort claims did not accrue until the incident report was expunged, his complaint, which was dated April 7, 2017, mailed by the prison on May 1, 2017, and docketed on May 3, 2017, was timely regardless of which of those dates is appropriate, as they all fell within six months of January 25, 2017. For the first time on appeal, the government makes the argument that Parrish presented administrative Claim 710 too early, since the tort claims alleged therein had not yet accrued when he submitted that administrative claim to the BOP on September 23, 2016. But because the government never raised this argument in the district court, despite having had the opportunity to do so, we conclude that this issue is not properly before us. See Richardson v. Clarke, 52 F.4th 614, 625 (4th Cir. 2022) (“Generally, parties may not raise new arguments on appeal that were not first presented to the district court below, absent exceptional circumstances”). Accordingly, we conclude that the district court erred in its January 16, 2019 order when it held that the claims in Parrish’s amended complaint that had been presented to the BOP in Claim 710 were untimely under § 2401(b) because he failed to commence the 15 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 16 of 17 action within six months of the BOP’s mailing of its final denial of Claim 710 on October 7, 2016. Because the parties agree that those claims did not accrue under Heck until his record on the disciplinary charge was expunged — on January 25, 2017, at the earliest — we conclude that his civil action, which was filed within six months of that date, was timely. C Parrish’s argument that he satisfied the mailbox rule by giving his complaint to prison officials on April 7, 2017, thereby effecting a filing date of April 7, is disputed by the government. But we need not examine that issue because it becomes irrelevant in light of our conclusion that the six-month limitations period was satisfied by either the April or May filing date when applying the principles of Heck. III Finally, in its March 23, 2020 order, the district court dismissed several of Parrish’s claims on the ground that they were unexhausted. See 28 U.S.C. § 2675(a). Yet, in conducting its exhaustion analysis, the court focused solely on whether the claims in his amended complaint had been presented in administrative Claim 283, having concluded that any claim presented in Claim 710 was time-barred. Claim 283, however, was far narrower than Parrish’s Claim 710, although it appears that the two claims overlapped to some degree. Because we now conclude that claims presented in Claim 710 were not barred by the statute of limitations, we also conclude that the court must conduct a new exhaustion analysis. Clearly, some of Parrish’s claims were exhausted based on his filing of Claim 16 USCA4 Appeal: 20-1766 Doc: 137 Filed: 10/19/2026 Pg: 17 of 17 710, but we leave for the district court on remand to assess whether all of Parrish’s claims were indeed exhausted. See Estate of Van Emburgh ex rel. Van Emburgh v. United States, 95 F.4th 795, 801 (4th Cir. 2024). * * * Accordingly, the judgment of the district court is vacated and the case remanded for further proceedings consistent with this opinion. VACATED AND REMANDED 17