            United States Court of Appeals
                        For the First Circuit
No. 16-1756

                     CONGREGATION JESHUAT ISRAEL,

                         Plaintiff, Appellee,

                                  v.

                    CONGREGATION SHEARITH ISRAEL,

                        Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF RHODE ISLAND

          [Hon. John J. McConnell, Jr., U.S. District Judge]


                                Before

                        Lynch, Circuit Judge,
                     Souter, Associate Justice,*
                    and Baldock, Circuit Judge.**


     Louis M. Solomon, with whom Colin A. Underwood, Nancy L.
Savitt, John F. Farraher, Jr., Greenberg Traurig, LLP, Deming E.
Sherman, and Locke Lord LLP were on brief, for appellant.
     Gary P. Naftalis, with whom Jonathan M. Wagner, Tobias B.
Jacoby, Daniel P. Schumeister, Kramer Levin Naftalis & Frankel
LLP, Steven E. Snow, and Partridge Snow & Hahn LLP were on brief,
for appellee.




     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     **Hon. Bobby R. Baldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
August 2, 2017
           SOUTER, Associate Justice.           This case began as an action

for declaratory judgment brought by Congregation Jeshuat Israel

("CJI"), which was followed by counterclaims on behalf of the

defendant, Congregation Shearith Israel ("CSI").                    The district

court held that CJI was owner of rimonim used in its worship in

the Touro Synagogue and that CSI was owner of the building and

real   estate    subject   to   a    trust    for   CJI   as   representing    the

practitioners of Judaism in Newport, Rhode Island.                  We reverse on

the basis of the parties' own agreements determining property

rights by instruments customarily considered by civil courts.                  We

hold that the only reasonable conclusions to be drawn from them

are that CSI owns both the rimonim and the real property free of

any civilly cognizable trust obligations to CJI.

                                         I.

           The district court made extensive findings of fact, of

which the following, limited synopsis presents the background of

this litigation.      In the latter part of the 17th century, the

Jewish population of Newport, Rhode Island, made up principally of

immigrants from Europe, associated for religious observances and

in the course of the following century became known as Congregation

Yeshuat Israel, which worshiped largely according to the Sephardic

(Spanish   and    Portuguese)       Jewish    tradition.       In   the   mid-18th

century, these observant Jews acquired land in Newport on which

the building now known as Touro Synagogue was built.                        Self-
                                      - 3 -
assessments on the congregants funded the land acquisition, and

the Synagogue was erected through donations.             The members chose

three men to serve in a trusteeship capacity over the Synagogue

and its lands, though it is not clear that these individuals would

have been recognized as trustees by the civil law in the mid-18th

century.

            Close in time to the construction of the Synagogue,

silversmith Myer Myers created the rimonim at issue here, a pair

of finials with attached bells made of silver and gold and designed

to surmount the shafts around which the Torah scrolls were rolled.

The rimonim were used in worship by Congregation Yeshuat Israel in

Touro Synagogue.

            In   the   course    of   the    period    running    from   the

Revolutionary War through the War of 1812, the Jewish population

in Newport virtually vanished.        As it dwindled, movable personal

property,   including   the     rimonim,    was   transferred    to   CSI,   a

Sephardic congregation in New York.         In the ensuing years, and for

the better part of the 19th century, various individuals took it

upon themselves to maintain the fabric of the Newport Synagogue,

and CSI, too, helped care for the building, which it controlled

and made available for occasional funerals.           In the latter part of

the 19th century, out of a new infusion of immigrants, a Jewish

population grew again in Newport.           To a significant degree, its

religious character was of the Ashkenazic (central and eastern
                                   - 4 -
European)     tradition,      and   its    worshippers     became       known     as

Congregation Jeshuat Israel, though its name represented no formal

connection with its predecessor.             When the community was large

enough to support a rabbi, Touro Synagogue was reopened, and CSI

returned the rimonim to Newport.

             Around the turn of the 20th century, the relationship

between CJI and CSI soured to a point in 1901 when CSI closed the

Synagogue.     After a year of closure, a group of the Newport Jews

broke in and engaged in a limited occupation that lasted for

another year, whereupon CJI and several individuals brought suit

in equity against CSI in a Rhode Island court, claiming a right to

the Synagogue and its lands.              CSI removed the case to federal

district court, which in January 1903 sustained CSI's demurrer and

dismissed the case.     See David v. Levy, 119 F. 799 (D.R.I. 1903).

             The effect that the judgment standing alone might have

today, if any, is not a matter of concern to us, owing to a series

of contracts that we mention here and describe in greater detail

below.   In 1903, CJI and CSI made an agreement to settle their

competing claims of interest in the real property, followed in the

same year by a five-year lease of the Synagogue from CSI to CJI,

which dealt with personal property as well as the real estate.

The lease was renewed for another five years in 1908.               Thereafter

CJI   continued   to   hold    services     in   the   building   and    in     1945

recognized its own status as lessee when it joined an agreement
                                     - 5 -
that    the   two   congregations     made    with    the   Department   of    the

Interior, and it again recited its lessee status in a further

contract made in 2001 by CJI and a supporting organization with

the    National     Trust   for   Historic    Preservation.       Although     the

leasehold relationship was thus acknowledged, CJI was a holdover

tenant under the 1908 lease, and for much of the parties' recent

history each took a relaxed view of CJI's nominal rent obligation,

the district court having found only one annual payment since 1987.

              In the recent period of their relationship, a want of

cordiality, if not acrimony, was brought to a pitch in 2011 by

CJI's efforts to raise an endowment to provide reliable income to

support its activity at the Synagogue.               In that year it received

an offer from the Museum of Fine Arts in Boston to purchase the

rimonim for over seven million dollars, and it prepared to sell

them.     CSI objected, claiming ownership of the objects, and

charging CSI with violation of the lease obligation to conform to

CSI's version of Sephardic practice, which forbade disposition of

such ritual objects.

              The standoff between the two congregations precipitated

the present litigation, begun by CJI, which filed suit against CSI

in Rhode Island Superior Court in 2012.                     It sought an order

declaring it to be the lawful owner of the rimonim and restraining

CSI from interfering with the proposed sale to the museum.                    As a

fallback, CJI asked for a judgment declaring that CSI owned the
                                      - 6 -
rimonim in trust for the benefit of CJI and authorizing the sale

as being in CJI's best interests.            CJI further requested that CSI

be removed as trustee, to be replaced in a trust capacity by CJI's

own board of trustees.

             CSI promptly removed the action to federal court, based

on diversity of citizenship, 28 U.S.C. § 1332(a), and then answered

the complaint and counterclaimed.                 The counterclaims asked the

district court to declare that CSI owns and has full legal and

equitable rights to the rimonim.               CSI sought a declaration that

the   sale   of   the   rimonim    would     be    contrary   to   the   Sephardic

tradition    as   maintained      by   CSI   and    thus   unlawful      under   the

governing instruments, and requested an injunction barring the

sale to the Museum and ordering physical transfer of the rimonim

to CSI, unless CSI should agree otherwise.1                    As to the real

property, CSI requested a declaration that CSI owned and had full

legal and equitable rights to the Synagogue and its lands.                       CSI

also asked for a declaration that CJI had breached the terms of

the lease with CSI and the 1945 agreement with the Department of

the Interior by, among other things, attempting to sell CSI's




      1 After trial but before the district court issued its
decision, CSI amended its counterclaims to state that, rather than
request the return of the rimonim to New York, it would stipulate
to a long-term loan of the rimonim to any congregation worshipping
at the Newport Synagogue in accordance with the conditions of the
lease and subject to other terms satisfactory to CSI.
                                       - 7 -
property and attempting to treat the Synagogue as its own by

installing        an   unauthorized    plaque.      CSI   requested     that   CJI

therefore be removed as lessee of the Synagogue and the related

real and personal property.              CSI went on to request that the

district court direct CJI to honor its "obligations and duties

under       the    contractual    and     long-standing         obligations    and

protocols," including an obligation not to alter its bylaws.

Finally, CSI sought an award of damages to be determined at trial,

along with attorney's fees and costs.2

              After     a   nine-day    bench    trial,   the    district     court

concluded that CJI was the rightful owner of the rimonim, with

full power to sell them. It further found that the Touro Synagogue

and its lands were owned in a charitable trust for the purpose of

Jewish worship in Newport, with CSI as trustee.                 After determining

that CSI had failed in its trusteeship duties, the district court

ordered CSI removed as trustee and CJI appointed in its stead.

                                         II.

              The district court approached the competing claims for

control of the rimonim and the Touro Synagogue's land and buildings




        2
       CSI also alleged that CJI had breached a "standstill
agreement" between the two parties by filing suit.     CSI sought
damages from the breach in an amount to be ascertained at trial.
But the district court considered this claim waived on account of
CSI's failure to argue it at trial, and CSI does not dispute that
determination on appeal.
                                        - 8 -
by   a   conscientious    and   exhaustive   historical    analysis.    It

concluded that CSI's authority as owner of the Synagogue had

evolved to that of trustee for the benefit of CJI as beneficiary

standing for those who engage in Jewish worship in Newport.            The

court's findings traced a long path through the history of Newport

Judaism, beginning in Rhode Island's founding century and passing

through periods of historical obscurity, the most notable of which

followed the decline of Newport's Jewish population beginning at

the time of the Revolution and its disappearance after the War of

1812.     The court confronted conflicting claims of bailment and

trusteeship in the course of describing a basic sequence of events

depending substantially on information found in the synagogues'

respective records and correspondence.

            Much of that history reflected, albeit without directly

addressing, the doctrinal tensions between the CSI congregation,

committed to preserving Sephardic practice at Touro, and the later

Newport    congregation     that   emerged    from   the    19th   century

immigration, which included a significant Ashkenazic element.          The

district court was scrupulous in avoiding any overt reliance on

doctrinal precepts, as forbidden by the Supreme Court's case law

applying the religion clauses of the First Amendment.          See, e.g.,

Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E. Orthodox

Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 709-10

(1976); Presbyterian Church in the U.S. v. Mary Elizabeth Blue
                                   - 9 -
Hull   Mem'l   Presbyterian   Church,    393       U.S.   440,   449   (1969).

Nonetheless, the court's historical investigation was unavoidably

an immersion in the tensions between two congregations that were

not doctrinally identical, one of which clearly insisted that the

other conform to some extent with a practice of Spanish and

Portuguese Judaism as a condition of favorable treatment. In fact,

CSI's insistence that its standard of religious practice forbade

the sale of the ritual objects was offered as the basis for

pressing its claim of ownership and authority to block the sale,

which eventuated in this case.

            These are circumstances in which we think that the First

Amendment calls for a more circumscribed consideration of evidence

than the trial court's plenary enquiry into centuries of the

parties' conduct by examining their internal documentation that

had been generated without resort to the formalities of the civil

law.   In implementing the religion clauses of the First Amendment,

the Supreme Court has established a regime of limits on judicial

involvement in adjudicating disputes between religious entities

situated like the parties before us, when competing property claims

reflect doctrinal cleavages. What the Court has approved as merely

"marginal   judicial   involvement"     by   the    civil   courts     in   such

circumstances, Presbyterian Church, 393 U.S. at 450, is aimed at

avoiding, or at least minimizing, the twin risks presupposed

respectively by the Constitution's Free Exercise and Establishment
                                - 10 -
Clauses: compromising the degree of religious autonomy guaranteed

by the former, and placing government in the position of seeming

to endorse the religious positions of the winners, forbidden by

the latter.    See Presbyterian Church, 393 U.S. at 449 ("If civil

courts undertake to resolve [church property disputes triggered by

religious doctrine and practice] . . . the hazards are ever present

of inhibiting the free development of religious doctrine and of

implicating secular interests in matters of purely ecclesiastical

concern.").    These objectives are summed up in another of the

Court's aspirational phrases, urging resort to a methodology that

allows courts, to the extent possible, to decide in ways that avoid

"entangl[ing them] in matters of religious controversy," Jones,

443 U.S. at 608, by relying instead upon the application of

"neutral principles of law, developed for use in all property

disputes," Presbyterian Church, 393 U.S. at 449; accord Soc'y of

Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 41-

42 (1st Cir. 2012).

          Although there is no simple template for locating the

line of limited involvement when property disputes defy resolution

by religious contenders themselves, the Court has made a point of

instructing religious bodies on actions open to them in advance of

controversy,   to   keep   judicial   intrusion   within   bounds.   As

examples, the Court has mentioned including provisions in deeds

and corporate charters spelling out reversionary rights or express
                                - 11 -
trust benefits, options available to religious organizations as

readily as to their secular counterparts.          Jones, 443 U.S. at 606.

And there can be no doubt that contractual arrangements between

the contending parties deserve the same preference as secular

grounds for judgment.      See id. at 603 n.3 (characterizing Watson

v. Jones, 80 U.S. (13 Wall.) 679 (1871), as establishing that

"regardless of the form of church government, it would be the

'obvious duty' of a civil tribunal to enforce the 'express terms'

of a deed, will, or other instrument of church property ownership"

(quoting   id.   at   722-23)).       It   is,   after   all,   these   common

instruments   for     establishing    ownership    and   control   that   most

readily enable a court to apply the required, neutral principles

in evaluating disputed property claims.

           When such provisions of deeds, charters, contracts, and

the like are available and to the point, then, they should be the

lodestones of adjudication in these cases.          And they are available

here: three contracts entered into by the two congregations that

establish ownership of the Synagogue and the rimonim, and a fourth

agreement to which CJI is a party, which confirms the continuing

vitality of the conclusions reached in the prior three.

           The first of them is a settlement agreement made in the

aftermath of the dismissal of the earlier action brought by CJI,

David, 119 F. 799. On January 30, 1903, a committee of CJI executed


                                     - 12 -
an agreement with the trustees of CSI containing these principal

provisions:

     The Congregation, Jeshuat Israel, agrees to admit and
     recognize without qualification the title and ownership of L.
     Napoleon Levy and acting trustees [of CSI] to the synagogue
     building, premises and fixtures.

     . . . L. Napoleon Levy and acting trustees upon receiving the
     absolute surrender of said premises agrees [sic] to make a
     lease thereof to the Congregation Jeshuat Israel for five
     years from February 1, 1903, at the nominal rent of one dollar
     yearly; said lease shall be in form satisfactory to the
     landlord and shall contain such clauses as will obviate the
     necessity of any legal proceedings, so far as possible, by
     either party to enforce its rights thereunder.

While the signatories on behalf of CSI are designated "trustees,"

there is no indication that they were understood to be trustees

for the benefit of any entity but their own congregation, and a

reasonable reading shows it to be highly unlikely that they were

understood to have trust obligations to CJI. CJI accepted "without

qualification" the CSI trustees' title to the Touro Synagogue land,

building, and fixtures.   The contract contemplates CJI's "absolute

surrender" of the premises, after which the CSI trustees agree to

lease them to CJI for five years at a dollar a year, "in form

satisfactory to the landlord."    Acceptance without qualification

of the title of trustees of an independent entity, to which

absolute surrender is made in anticipation of a lease satisfactory

to the landlord (without any reference to preference of the lessee)

is operative language without a hint of possible trust terms or

trust obligations running from the lessor landlord to the lessee.
                               - 13 -
                The contemplated lease was expeditiously signed, on

February 2, 1903, by a committee acting on behalf of CJI and by

the CSI trustees. Its maximum term was five years, at the trifling

annual rent specified in the preceding settlement.                        The nominal

rent of course, expresses a hopeful, if not kindly, disposition on

the    landlord's       part,    but     is    not   an    acknowledgement      of   any

obligation of legally recognized trusteeship.                      For that matter,

the generosity was apparently offset by a duty on the lessee's

part to maintain the premises; there was no provision obligating

CSI to pay for their upkeep, whereas CJI was obligated to surrender

them       in   as   good    condition    as    when      received,   save   only    for

reasonable wear and damage by the "elements."                      Nor was property

maintenance          CJI's   only   obligation.           Even   within   the   rented

synagogue it had no discretion but to conduct "the usual and stated

religious services according to the ritual rites and customs of

the [Sephardic] Jews as at this time practiced" in CSI's own

synagogue in New York.3 And it was required to obtain CSI's advance


       3The condition to follow Sephardic practice does not
disentitle the lease to consideration as an essentially secular
document to be interpreted under neutral principles in determining
the parties' respective property rights. Some adversion to matters
of doctrine or practice animating the relationship of two religious
parties in controversy is probably inevitable, even on the
restrictive concept of legal acts preferred as bases for
determining the terms of ownership and control of property for
religious purposes under the cited case law.      In this instance
citation to religious practice is of no significance.           The
reference to Sephardic practice in this customary instrument of a
leasing transaction does not require a court to determine what
                              - 14 -
approval of "any Minister" who might "officiate" on the premises.

For failure by CJI to pay the rent or for breach of conditions CSI

was entitled to "oust" CJI from the premises.

           In    this       litigation,     two     features     of   the    lease     are

particularly notable.             First, neither in stating the lessee's

obligations and restrictions, nor in setting out the lessor's duty

to provide quiet possession was there any mention of a trust

obligation underlying or complementing the terms set out.                       Just as

in any normal instance of a rental transaction, there was no

indication that the relationship of the parties was to be governed

by   anything    but        the   terms     of     the    contract.         Second,     an

interlineation in the typed text of the lease provided that it

covered not only the real estate described, together with its

appurtenances, but also "paraphernalia belonging thereto."                             The

notary   for    the    signers      on    behalf     of   CJI    attested     that     the

interlineation        had    been   added    before       they   signed.       We     read

"paraphernalia" to cover the rimonim, given the evidence that they

were in use in Touro Synagogue at the time, as well as CJI's

argument here that they should be regarded as property historically

associated with Jewish worship in that Synagogue.




that practice should be. The lease refers to Sephardic ritual and
custom observed by CSI as of the time of the lease: that could
require only a determination of practice in fact, not a resolution
of contending views about what practice is or was "true."
                                          - 15 -
             Although       the         district       court       declined         to        read

"paraphernalia"       as    encompassing           rimonim,       owing    to   a     lack     of

affirmative evidence that the CJI signatories understood the term

"paraphernalia" this way, we think no such specific evidence is

necessary.        Contracts are generally construed in accordance with

the   common      understanding         of    their    terms      at    the   time       of   the

agreement, and the common understanding in 1903 would have covered

the rimonim associated with Touro under the term "paraphernalia."

See Paraphernalia, The Century Dictionary and Cyclopedia (1903)

("Personal        ornaments    or        accessories        of     attire;       trappings;

equipments,       especially       such       as   are     used    on     parade,     or      for

ostentatious       display,        as    the       symbolic       garments,      ornaments,

weapons, etc., used by freemasons or the like."); Paraphernalia,

Webster's International Dictionary of the English Language (1900)

("Appendages; ornaments; finery; equipments."); Paraphernalia, A

Standard Dictionary of the English Language (1894) ("Miscellaneous

articles     of    equipment       or     adornment;        appendages;         belongings;

finery.").

             The    third     of    the      significant         documents      subject         to

judicial consideration is a 1945 agreement among three parties,

CJI, CSI, and the Secretary of the Interior, for the care and

preservation of the Synagogue as a National Historic Site.                                As in

1903, CJI acted by a committee and CSI by its trustees.                             Under the

contract's     terms,      public       access        to   the    premises      was      to    be
                                             - 16 -
consistent with the Synagogue as a place of worship by CJI, and

CSI and CJI agreed that in honoring the contract they would act

"in accordance with and subject to their respective rights and

obligations as lessor and lessee as heretofore established . . . ."

           In one respect, however, this contract is unlike the

preceding ones in imputing trust obligations (unspecified) to CSI.

Their supposed source was identified as "a [recorded] Deed of Trust

dated April 27, 1894" said to have created "certain trusts in the

Touro Synagogue."     A subsequent provision referred to "recorded

deeds and declarations of Trusts," (although the only document

specifically identified was the one first cited).

           The consequence of this language is, however, less than

meets the eye.     The agreement included no explanation aside from

the deed cited (and deeds alluded to) for speaking of CSI as being

under a trust obligation to CJI, and that cited source failed to

support any finding that it created a trust relationship.            As the

district court explained [Add 38, 86], CSI obtained the deed in

question at its own behest, from an heir of one of the three

original trustees of the pre-Revolutionary Congregation Yeshuat

Israel.   The deed purported to convey any interest that might have

passed to the trustee's descendants unbeknownst to them or to

anyone else in the interim.     The district court referred to eight

additional comparably indeterminate deeds from other Congregation

Yeshuat   Israel   trustee   descendants,   two   of   which   the    court
                                - 17 -
described         as   purporting   to    convey   their   uncertain     interests

subject to a trust obligation.                 Like the district court, we

conclude that the deeds lack any significance for this case.

                  To begin with, they contained no language that could

include the rimonim.            But even as to the real estate alone, we

have no indication that the grantors had anything to convey to

which a trust obligation could attach by the acts of the minority

of grantors who mentioned trust at all.                 At best, the deeds may

collectively have had some rhetorical value for CSI in dealing

with the tensions between it and the new congregation of CJI; as

the district court noted, the deeds contained the first statements

of what later became the lease condition that worship at Touro

conform to Sephardic practice as observed by CSI.                  The upshot is

that the record fails to show that the references to a trust

obligation on CSI's part to the worshipers at Touro were anything

more       than    terms   of   empty    conveyances.      They   are,   moreover,

unsupported by evidence of the sort preferred in applying neutral

principles meant to keep a court from entanglement.                 Accordingly,

we treat the trust reference in the tripartite agreement as having

no legal significance in determining ownership of or authority

over either the rimonim or the Synagogue.4


       4
       The district court found significance in CJI's favor in
another item of legal character undoubtedly entitled to
consideration as a matter of course under the Supreme Court's model
for dealing with religious property disputes. In 1932 the Rhode
                               - 18 -
           This conclusion is supported by a fourth contract open

to consideration in harmony with Jones, 443 U.S. 595.               In 2001,

another agreement was made among three parties: CJI, a supportive

organization known as the Society of Friends of Touro Synagogue,

and the National Trust for Historic Preservation.                 Its stated

durational term was fifty years, and its objects were preservation

of the Synagogue and provision of education for public visitors.

CJI was described as having "possession of the site through a lease

with Congregation Shearith Israel as owner."         That recitation was

not qualified by anything referring to a trusteeship duty on the

part of CSI, nor did any provision in the agreement raise any

implication of such a relationship.        It simply confirmed that the

two   congregations   were   bound   as   lessor   and   lessee    and   thus

indicated that, however erratic the rent payments had become, CJI

had no legal claim beyond that of a holdover tenant under the terms

of the 1903 lease, as formally renewed in 1908.            Although there

was an allusion to personal property in CJI'S obligations to the

other two parties to protect and conserve "the related collections

in its ownership, possession or control," no object was mentioned




Island General Assembly enacted a statute exempting the Synagogue
from property taxation.     1932 R.I. Acts & Resolves 427.      The
premises were described as "held in trust." Id. The statute does
not, however, reveal whether the trustees were those of CSI or CJI
itself, let alone what difference it would make in this litigation.
                                 - 19 -
as being within any of the three categories, and nothing can be

inferred from this provision about the ownership of the rimonim.

                                     III.

           We think the only reasonable conclusions about property

title, ownership, and control that can be drawn from the foregoing

evidence are that, as between the parties in this case,

     (a) CSI is fee owner of the Touro Synagogue building,

     appurtenances,     fixtures,        and   associated   land    as

     described in the 1903 lease;

     (b) likewise CSI is owner of the rimonim in issue here;

     (c) in each case CSI's ownership is free of any trust or

     other obligation to CJI except as lessor to CJI as

     holdover lessee;5

     (d) CJI's interest in the Synagogue building and related

     real property mentioned above is solely that of holdover

     lessee.

We accordingly reverse the judgment of the district court and

remand   the   case   for   entry   of    judgment   consistent    with   the

conclusions set out above.




     5 CSI's prayer for relief seeks a judgment that it owns the
Touro Synagogue and its ritual contents "as charitable trustee."
But CSI's counsel responded to a request from the court for
clarification by subsequently filing a letter under Federal Rule
of Appellate Procedure 28(j) stating that it stands by its claim
of ownership free of any legally cognizable trust obligation.
                                    - 20 -
          We recognize that the order of remand leaves a number of

the counterclaim requests for relief without resolution. But owing

both to the obvious consequences of the judgment outlined above,

and to the phrasing of CSI's request for relief at the conclusion

of its brief, we are uncertain of any present need for judicial

action on the issues raised but not formally resolved here.    The

judgment we order will therefore be without prejudice to CSI to

bring claims raised by it but not resolved here in a new action.

CSI's request for counsel fees and costs, however, shall be heard

by the district court on remand.    Any new action, as well as the

motion for fees and costs, shall be heard by a judge not already

fatigued by this litigation.

          Each party shall bear its own costs.




                               - 21 -
