DC Circuit: June 2009 Archives
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June 2009 Archives

Hornbeck Offshore Transp., LLC v. US, No. 08-5225

In a tort action against the U.S. based on the Coast Guard's decision to phase out single-hulled oil barges such as those operated by Plaintiff, the dismissal of the complaint is affirmed where Plaintiff identified no duty that could give rise to liability under state law.

Read Hornbeck Offshore Transp., LLC v. US, No. 08-5225

Appellate Information

Argued April 14, 2009

Decided June 30, 2009

Judges

Opinion by Judge Brown

Concurrence by Judge Rogers

Counsel

For Appellant:

Gene C. Schaerr, Winston & Strawn LLP, Washington, DC

Lawrence I. Kiern, Winston & Strawn LLP, Washington, DC

For Appellee:

Sydney A. Foster, Attorney, U.S. Department of Justice, Washington, DC

Moshea v. Nat'l. Transp. Safety Bd., No. 08-1218

In a petition for review of the National Transportation Safety Board's revocation of Petitioner's pilot certificate, the petition is granted where the Board erred by finding that it lacked jurisdiction to consider Petitioner's defense that he complied with an FAA voluntary disclosure program.

Read Moshea v. Nat'l. Transp. Safety Bd., No. 08-1218

Appellate Information

Argued April 24, 2009

Decided June 30, 2009

Judges

Opinion by Judge Kavanaugh

Counsel

For Petitioner:

Joseph H. Thibodeau, Law Offices of Joseph H. Thibodeau, P.C.

For Respondent:

Agnes M. Rodriguez, Attorney, Federal Aviation Administration, Washington, DC

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S&F Market St. Healthcare LLC v. NLRB, No. 07-1439

In a petition for review of the NLRB's finding that Petitioner engaged in an unfair labor practice by failing to notify certain temporary employees that the terms and conditions of their employment would change, the petition is granted where the NLRB erred in concluding that Petitioner was a "perfectly clear" successor to a prior company and that Petitioner was not entitled to implement new terms and conditions of employment.

S&F Market St. Healthcare LLC v. NLRB, No. 07-1439

Appellate Information

Argued November 17, 2008

Decided June 30, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Petitioner:

John H. Douglas

For Respondent:

Amy H. Ginn, National Labor Relations Board, Washington, DC

Ronald E. Meisburg, General Counsel, National Labor Relations Board, Washington, DC

Novak v. Capital Mgmt. & Dev. Corp., No. 08-7135

In a personal injury action arising out of a nightclub's failure to monitor an alley next to its exit where Plaintiff was attacked, judgment for Plaintiff is affirmed where a reasonable jury could have found that Plaintiff did not voluntarily enter the fray, but rather was swept up in the attack.

Read Novak v. Capital Mgmt. & Dev. Corp., No. 08-7135

Appellate Information

Submitted November 14, 2008

Decided June 26, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

Brian E. Hoffman, Saunders & Schmieler, P.C.

Jeffrey R. Schmieler, Saunders & Schmieler, P.C.

For Appellee:

Patrick M. Regan, Regan, Zambri & Long, P.L.L.C., Washington, DC

In a legal malpractice action, summary judgment for Defendant law firm is affirmed where previous litigation involving Defendant's fee applications and the malpractice claim arose out of the same nucleus of facts and the identity element of res judicata was satisfied.

Read Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, No. 08-7109

Appellate Information

Argued May 11, 2009

Decided June 26, 2009

Judges

Opinion by Judge Brown

Counsel

For Appellant:

Emil Hirsch

For Appellee:

Jack McKay, Pillsbury, Winthrop, Shaw, Pittman, LLC, Washington, DC

Del Monte Fresh Produce Co. v. US, No. 08-5398

In an action seeking an injunction requiring the Office of Foreign Assets Control to issue Plaintiff a license to export goods to Iran, the dismissal of the complaint is reversed, where Plaintiff's claims fell within the "capable of repetition but evading review" exception to the mootness doctrine.

Read Del Monte Fresh Produce Co. v. US, No. 08-5398

Appellate Information

Argued April 9, 2009

Decided June 26, 2009

Judges

Opinion by Judge Rogers

Dissent by Judge Sentelle

Counsel

For Appellants:

Daniel G. Jarcho, McKenna Long & Aldridge LLP, Washington, DC

For Appellees:

Anisha S. Dasgupta, Attorney, U.S. Department of Justice, Washington, DC

Michael F. Hertz, Acting Assistant Attorney General, U.S. Department of Justice, Washington, DC

Oglala Sioux Tribe v. US Army Corps of Eng'rs., No. 08-5133

In an action by a Sioux Indian tribe seeking a declaration that the 1889 Act of Congress dissolving the Great Sioux Reservation never took effect, the dismissal of the complaint is affirmed where the Indian Claims Commission Act of 1946 imposed a 5-year limitations period on Indian claims then existing and arising, and that period expired.

Read Oglala Sioux Tribe v. US Army Corps of Eng'rs., No. 08-5133

Appellate Information

Argued February 12, 2009

Decided June 26, 2009

Judges

Opinion by Judge Randolph

Partial concurrence and partial dissent by Judge Tatel

Counsel

For Appellant:

Mario Gonzalez, Oglala Sioux Tribe, Pine Ridge, SD

Patricia Marks, Oglala Sioux Tribe, Pine Ridge, SD

For Appellee:

Robert J. Lundman, Attorney, U.S. Department of Justice, Washington, DC

Katherine Hazard, Attorney, U.S. Department of Justice, Washington, DC

Landstar Express Am., Inc. v. Federal Maritime Comm'n., No. 08-1067

In a petition for review of the Federal Maritime Commission's order requiring agents of Ocean Transportation Intermediaries (OTIs) to be licensed, the petition is granted, where the Commission does not possess statutory authority to require agents of OTIs who are not themselves OTIs to obtain licenses.

Read Landstar Express Am., Inc. v. Federal Maritime Comm'n., No. 08-1067

Appellate Information

Argued April 21, 2009

Decided June 26, 2009

Judges

Opinion by Judge Kavanaugh

Counsel

For Petitioners:

David K. Monroe, GKG Law, P.C., Washington, DC

David P. Street, GKG Law, P.C., Washington, DC

For Respondents:

Benjamin K. Trogdon, Attorney, Federal Maritime Commission, Washington, DC

Deborah A. Garza, Acting Assistant Attorney General, U.S. Department of Justice, Washington, DC

Alvin Lou Media, Inc. v. FCC, No. 08-1067

In a petition for review of the denial of Petitioner radio station's request for reconsideration of the mutually exclusive designation of the application filed by a competitor to operate an AM station, the petition is denied where the FCC may establish standards of acceptability for filing an application that differ from the standards for granting a license or permit.

Read Alvin Lou Media, Inc. v. FCC, No. 08-1067

Appellate Information

Argued April 17, 2009

Decided June 26, 2009

Judges

Opinion by Judge Rogers

Counsel

For Appellant:

Dennis J. Kelly, Winston & Strawn LLP, Chicago, IL

For Appellee:

C. Grey Pash, Jr., Counsel, Federal Communications Commission, Washington, DC

Joseph R. Palmore, Deputy General Counsel, Federal Communications Commission, Washington, DC

Horning v. SEC, No. 08-1038

In a petition for review of an SEC order barring Petitioner from associating with a broker or dealer in a supervisory capacity based on his failure to adequately supervise two of his employees, the petition is denied where the SEC's order was reasonable and supported by substantial evidence.

Read Horning v. SEC, No. 08-1038

Appellate Information

Argued November 13, 2008

Decided June 26, 2009

Judges

Opinion by Judge Williams

Counsel

For Petitioner:

Thomas D. Birge, Birge & Minckley, P.C., Centennial, CO

For Respondent:

Dominick V. Freda, Senior Counsel, Securities & Exchange Commission, Washington, DC

Brian G. Cartwright, General Counsel, Securities & Exchange Commission, Washington, DC

Summers v. Dep't of Justice, No. 07-5315

In a Freedom of Information Act (FOIA) action seeking certain FBI records, the denial of an attorney's fee award to Plaintiff is affirmed, where the amendment to FOIA in the OPEN Government Act of 2007 does not apply retroactively, and thus Plaintiff was not entitled to fees under that provision.

Read Summers v. Dep't of Justice, No. 07-5315

Appellate Information

Argued November 10, 2008

Decided June 26, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Appellant:

James H. Lesar

For Appellee:

Darrell C. Valdez, Assistant U.S. Attorney, Washington, DC

Jeffrey A. Taylor, Assistant U.S. Attorney, Washington, DC

Consolidated Rail Corp. v. STB, No. 07-1401

In a petition for review of a Surface Transportation Board order concluding that a public railroad must obtain authorization from the Board to abandon certain railroad trackage, the petition is granted where the Board lacked jurisdiction to approve or deny applications for abandonment pursuant to 49 U.S.C. section 10903.

Read Consolidated Rail Corp. v. STB, No. 07-1401

Appellate Information

Argued April 20, 2009

Decided June 26, 2009

Judges

Opinion by Judge Henderson

Counsel

For Petitioners:

Robert M. Jenkins III, Mayer Brown LLP, Washington, DC

Jonathan M. Broder, Consolidated Rail Co., Philadelphia, PA

Fritz R. Kahn, Washington, DC

For Respondent:

Ronald Molteni, Surface Transportation Board, Washington, DC

Quigley v. Giblin, No. 08-7056

In an action to enjoin a union from requiring candidates for union office to password-protect their websites, summary judgment for Defendant is affirmed, where the restriction was not viewpoint-based and left open alternative methods of communication with the public, and thus it complied with Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act.

Read Quigley v. Giblin, No. 08-7056

Appellate Information

Argued May 4, 2009

Decided June 23, 2009

Judges

Per Curiam.

Counsel

For Appellants:

Paul Alan Levy, Public Citizen Litigation Group, Washington, DC

For Appellees:

Leon Dayan, Bredhoff & Kaiser, P.L.L.C., Washington, DC

Robert M. Weinberg, Bredhoff & Kaiser, P.L.L.C., Washington, DC

Matthew H. Clash-Drexler, Bredhoff & Kaiser, P.L.L.C., Washington, DC

Zacharias v. SEC, No. 08-1134

In a petition for review of the SEC's finding of securities law violations by Petitioners, the petition is granted in part, where the SEC failed to explain its finding that certain omissions by Petitioners involved a material fact; but denied in part, where the scheme at issue clearly involved an "underwriter," which refuted Petitioners' theory that they properly relied on the Regulation S and Section 4 exemptions.

Read Zacharias v. SEC, No. 08-1134

Appellate Information

Argued March 5, 2009

Decided June 23, 2009

Judges

Per Curiam.

Opinion dissenting in part filed by Senior Circuit Judge WILLIAMS.

Counsel

For Petitioners:

Jeffrey J. Scott

David A. Zisser, Isaacson Rosenbaum P.C., Denver, CO 

Thomas D. Birge, Birge & Minckley P.C., Centennial, CO

For Respondents:

Randall W. Quinn, Assistant General Counsel, Securities & Exchange Commission, Washington, DC

Andrew N. Vollmer, Acting General Counsel, Securities & Exchange Commission, Washington, DC

Jacob H. Stillman, Solicitor, Securities & Exchange Commission, Washington, DC

Benjamin L. Schiffrin, Securities & Exchange Commission, Washington, DC

Brian G. Cartwright, Securities & Exchange Commission, Washington, DC

Connecticut Dept. of Pub. Util. Control v. FERC, No. 07-1375

In a petition for review of FERC's modification of the amount of a bulk power system's Installed Capacity Requirement (ICR), the petition is denied where FERC was not directly regulating electrical generation in its review of the ICR, and thus FERC was not exceeding its authority under the Federal Power Act.

Read Connecticut Dept. of Pub. Util. Control v. FERC, No. 07-1375

Appellate Information

Argued May 12, 2009

Decided June 23, 2009

Judges

Judge Tatel delivered the opinion of the Court.

Counsel

For Petitioner:

Randall L. Speck, Young, Thagard, Hoffman, Smith & Lawrence, L.L.P., Washington, DC

John S. Wright, Assistant Attorney General, State of Connecticut, Hartford, CT

Michael C. Wertheimer, Assistant Attorney General, State of Connecticut, Hartford, CT

Jesse S. Reyes, Assistant Attorney, Attorney General's Office of Commonwealth of
Massachusetts

Lisa C. Fink, State of Maine Public Utilities Commission, Augusta, ME

Lisa S. Gast, Duncan, Weinberg, Genzer & Pembroke, P.C., Washington, DC

For Respondent:

Samuel Soopper, Attorney, Federal Energy Regulatory Commission, Washington, DC

Cynthia A. Marlette, General Counsel, Federal Energy Regulatory Commission, Washington, DC

Robert H. Solomon, Solicitor, Federal Energy Regulatory Commission, Washington, DC.

John N. Estes III, Skadden Arps Slate Meagher & Flom, Washington, DC

Scott Phillip Myers, Skadden Arps Slate Meagher & Flom, Washington DC

Paul Franklin Wight, Skadden Arps Slate Meagher & Flom, Washington DC

James C. Beh, Jones Day, Washington, DC

Shay Dvoretzky, Jones Day, Washington, DC

Larry F. Eisenstat, Dickstein Shapiro LLP, Washington DC

George E. Johnson, Dickstein Shapiro LLP, Washington DC

Christopher C. O'Hara, Inman, SC

Sherry A. Quirk, Schiff Hardin LLP, Washington DC 

Montina M. Cole, Schiff Hardin LLP, Washington DC

Verizon Telephone Cos. v. FCC, No. 08-1012

In a petition for review of an FCC order denying Petitioner's petitions for forbearance from its unbundling obligations under Section 251 of the Communications Act, the petition is granted, where the FCC's analysis departed from FCC precedent by relying solely on actual, and not potential, marketplace competition.

Read Verizon Tel. Cos. v. FCC, No. 08-1012.

Appellate Information

On Petition for Review of an Order of the Federal Communications Commission
Argued November 17, 2008
Decided June 19, 2009

Judges

Before: SENTELLE, Chief Judge, and GRIFFITH, Circuit Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SENTELLE.

Counsel

Scott H. Angstreich argued the cause for petitioners. With him on the briefs were Brendan J. Crimmins, Michael E. Glover, Edward H. Shakin, and Rashann Duvall.

Robert B. McKenna Jr., Russell P. Hanser, and Travis E. Litman were on the brief for intervenors Qwest Communications International Inc. and Qwest Corporation in support of petitioners.

Richard K. Welch, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Thomas O. Barnett, Assistant Attorney General, Catherine G. O'Sullivan and Nancy C. Garrison, Attorneys, U.S. Department of Justice, Matthew B. Berry, General Counsel, Federal Communications Commission, Joseph R. Palmore, Deputy General Counsel, and Laurel R. Bergold, Counsel.

Brad E. Mutschelknaus, Genevieve Morelli, David P. Murray, Thomas Jones, Randy Branitsky, Russell M. Blau, Joshua M. Bobeck, Philip J. Macres, David E. Mills, J. G. Harrington, and Deanne O'Dell were on the brief of CLEC Intervenors and Amicus in support of respondents.

Joel H. Cheskis, Gerald A. Norlander, Louis Manuta, Stefanie A. Brand, Christopher J. White, Charles M. Browder, Jr., Senior Assistant Attorney General, Attorney General's Office of State of Virginia, Paula M. Carmody, Martha Coakley, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, Jesse S. Reyes, Assistant Attorney General, and Joseph Witmer were on the joint brief of intervenors in support of respondents. David C. Bergmann, Maureen R. Matsen, Assistant Attorney General, Attorney General's Office of State of Virginia, and Tanya J. McCloskey entered appearances.

Vila v. Inter-American Investment Corp., No. 08-7042

In an unjust enrichment action by an independent consultant for Defendant Inter-American Investment Corporation (IIC), the District Court's denial of Defendant's motion to dismiss is affirmed where, by waiving immunity from unjust enrichment claims of independent consultants whom the IIC solicits to help negotiate the commercial lending agreements that are central to its function, the IIC gains a corresponding benefit that furthers its objectives.

Read Vila v. Inter-Am. Inv. Corp., No. 08-7042.

Appellate Information

Appeal from the United States District Court for the District of Columbia
(No. 1:06-cv-02143-RBW)
Filed June 19, 2009

Judges

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the court by Circuit Judge ROGERS.
Dissenting opinion by Senior Circuit Judge WILLIAMS.

Counsel

Nancy L. Perkins argued the cause and filed the briefs for appellant.

F. Douglas Hartnett argued the cause and filed the brief for appellee.

Hendricks v. Geithner, No. 07-5392

In a Title VII action for Defendant's allegedly racially discriminatory failure to promote Plaintiff, summary judgment for Defendant is affirmed, where Plaintiff failed to offer evidence supporting an inference that, absent discrimination, she would have been picked for the job.

Read Hendricks v. Geithner, No. 07-5392.

Appellate Information

Appeal from the United States District Court for the District of Columbia
(No. 03cv02239)
Filed June 19, 2009

Judges

Before: SENTELLE, Chief Judge, and GINSBURG and BROWN, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.

Counsel

Molly E. Buie argued the cause for appellant. With her on the briefs was Robert C. Seldon.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Andrea W. McBarnette, Assistant U.S. Attorney, entered an appearance.

Public Citizen, Inc. v. Offc. of Mgmt. & Budget, No. 08-5004

In an appeal from the District Court's order permitting the Office of Management & Budget (OMB) to redact certain documents in response to a Freedom of Information Act request, the order is reversed, where 1) the documents did not relate predominantly to OMB's internal practices; and 2) they were not predecisional and deliberative.

Read Public Citizen, Inc. v. Offc. of Mgmt. & Budget, No. 08-5004.

Appellate Information

Appeal from the United States District Court for the District of Columbia (No. 07cv00409)
Filed June 19, 2009

Judges

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.

Counsel

Adina H. Rosenbaum argued the cause for appellant. With her on the briefs was Brian Wolfman.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Keating v. FERC, No. 08-1005

In a petition for review of FERC's decision to lift a stay of the four-year deadline for beginning construction at a site for which FERC had granted a permit, the petition is denied where Petitioner was not entitled to an indefinite extension of the stay and FERC's findings concerning the remaining hurdles to commencing construction were sufficient to support the denial of a further stay.

Read Keating v. FERC, No. 08-1005.

Appellate Information

On Petition for Review of Orders of the Federal Energy Regulatory Commission
Filed June 19, 2009

Judges

Before: SENTELLE, Chief Judge, ROGERS and BROWN, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.

Counsel

Joshua P. Thompson argued the cause for petitioner. With him on the briefs were James S. Burling and Damien M. Schiff.

Robert M. Kennedy Jr., Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. On the brief were Cynthia A. Marlette, General Counsel, Robert H. Solomon, Solicitor, and Holly E. Cafer, Attorney.

Chambers v. Department of Interior, No. 08-5165

In a Privacy Act action by a former Department of Interior employee claiming that Defendant failed to provide Plaintiff access to an appraisal of her job performance and failed to safeguard that appraisal, summary judgment for Defendant is affirmed in part, where Plaintiff did not point to any adverse agency determination she experienced because of Defendant's failure to maintain the appraisal; but reversed in part, where there was a genuine issue of material fact regarding whether Defendant intentionally destroyed the appraisal after Plaintiff requested access to it.

Read the full decision in Chambers v. Department of Interior, No. 08-5165.

Appellate Information:

Appeal from the United States District Court for the District of Columbia
(No. 1:05-cv-00380-JR)
Argued May 8, 2009
Decided June 16, 2009

Judges:

Before HENDERSON, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAREN LECRAFT HENDERSON.

Counsel:

Paula Dinerstein argued the cause for the appellant.

Beverly M. Russell, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant United States Attorney, were on brief.

In a petition for review of a FERC ratemaking order requiring electricity wholesalers to make refunds to customers, the petition is denied, where Petitioners provided no basis for disturbing FERC's reasoned decision to apply a point of sale test rather than a sink-based test to Petitioners' market-based tariffs.

Read the full decision in Westar Energy, Inc. v. Fed. Energy Regulatory Commission, No. 08-1196.

Appeal Information:

Argued March 26, 2009. Decided June 12, 2009.

Judges:

Before: HENDERSON, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

Counsel:

Martin J. Bregman argued the cause for petitioners. With him on the briefs were Donald K. Dankner, Raymond B. Wuslich, and Margaret H. Claybour of Winston & Strawn LLP.

Kathrine L. Henry, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were Cynthia A. Marlette, General Counsel, and Robert H. Solomon, Solicitor.

In a petition for review of an FLRA order requiring the SEC to provide back pay for unilaterally ending within-grade pay increases, the petition is denied, where: 1) the FLRA's credibility determinations were supported by substantial evidence; and 2) back pay was appropriate because the within-grade increases were virtually automatic and non-competitive.

Securities and Exchange Comm. v. Federal Labor Relations Authority, No. 08-1256.

Appeal Information:

Argued May 5, 2009. Decided June 12, 2009.

Judges:

Before GINSBURG, BROWN and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge KAVANAUGH.

Counsel:

Samuel M. Forstein, Assistant General Counsel, Securities & Exchange Commission, argued the cause for petitioner. With him on the briefs were Andrew N. Vollmer, Acting General Counsel, and Rufus Beatty, Senior Special Counsel. Richard M. Humes, Associate General Counsel, entered an appearance.

James F. Blandford, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief were Rosa M. Koppel, Solicitor, and William R. Tobey, Deputy Solicitor.

Barbara A. Sheehy argued the cause for intervenor. With her on the brief were Gregory O'Duden and Elaine Kaplan. Barbara A. Atkin entered an appearance.

Entergy Servs., Inc. v. Fed. Energy Regulatory Comm., No. 07-1343

In a petition for review of FERC's resolution of a contract dispute between two energy providers, the petition is denied, where FERC's construction of the contract was reasonable based on the text and the parties' course of conduct.

Read the full decision in Entergy Servs., Inc. v. Fed. Energy Regulatory Comm., No. 07-1343.

Appeal Information:

Argued October 7, 2008. Decided June 12, 2009.

Judges:

Before SENTELLE, Chief Judge, and RANDOLPH and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Counsel:

Floyd L. Norton IV of Morgan, Lewis & Bockius LLP argued the cause for petitioner. With him on the briefs was Erin M. Murphy.

Samuel Soopper, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were Cynthia A. Marlette, General Counsel, and Robert H. Solomon, Solicitor.

Sean T. Beeny of Miller, Balis & O'Neil, P.C. argued the cause for intervenor. With him on the brief were Phyllis G. Kimmel and Milton J. Grossman.