WINSTAR CORP. v. U.S.

No. 92-5164.

64 F.3d 1531 (1995)

WINSTAR CORPORATION, United Federal Savings Bank, Statesman Savings Holding Corp., The Statesman Group, Inc. and American Life and Casualty Insurance Company, and Glendale Federal Bank, FSB, Plaintiffs-Appellees, v. The UNITED STATES, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

August 30, 1995.


Attorney(s) appearing for the Case

Charles J. Cooper, Shaw, Pittman, Potts & Trowbridge, Washington, DC, argued, for plaintiffs-appellees, Winstar Corp., United Federal Sav. Bank, Statesman Sav. Holding Corp., The Statesman Group, Inc., and American Life and Cas. Ins. Co. With him on the brief were Michael A. Carvin, Robert J. Cynkar and Vincent J. Colatriano. Jerry Stouck, Spriggs & Hollingsworth, Washington, DC, argued, for plaintiffs-appellees, Glendale Federal Bank, FSB. With him on the brief were Joe G. Hollingsworth, Donald W. Fowler and Charles J. Fromm.

Douglas Letter, Appellate Litigation Counsel, Dept. of Justice, Washington, DC, argued, for defendant-appellant, U.S. With him on the brief was Frank W. Hunger, Asst. Atty. Gen., Scott R. McIntosh and William Kanter, Attys., Dept. of Justice, Washington, DC, for defendant-appellant, U.S.

William H. Butterfield, McGuire, Woods, Battle & Boothe, Washington, DC, was on the brief for, amicus curiae, The Electronic Industries Ass'n, The Shipbuilders Council of America, Inc. and Litton Industries, Inc.

Clarence T. Kipps, Jr. and Kevin C. Dwyer, Miller & Chevalier, Chartered, Washington, DC, were on the brief, for the amicus curiae, Aerospace Indust. Ass'n of America, Inc. Also on the brief were Professor Emeritus John Cibinic, Jr., The National Law Center, Washington, DC, Kathleen A. Buck, Kirkland & Ellis, Washington, DC, and Mac S. Dunaway and Gary E. Cross, Dunaway & Cross, Washington, DC.

Herbert L. Fenster, McKenna & Cuneo, Washington, DC, was on the brief, for amicus curiae, Chamber of Commerce of U.S. With him on the brief were Tami Lyn Azorsky and Margaret C. Rhodes. Also on the brief was Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, DC, of counsel were Hugo Teufel, III and Mark A. Rowland.

Don S. Willner, Willner & Zabinsky, Portland, OR, was on the brief, for amicus curiae, C. Robert Suess, Leo Sherry, Richard A. Green, Irving Roberts and Foster, Paulsell & Baker, Inc. With him on the brief were Thomas M. Buchanan and Eric W. Bloom, Winston & Strawn, Washington, DC.

Melvin C. Garbow and Peter T. Grossi, Jr., Arnold & Porter, Washington, DC, were on the brief, for amicus curiae, Amwest Sav. Ass'n and The Adam Corp./Group; The Globe Sav. Bank, FSB and Phoenix Capital Group, Inc.; and Old Stone Corp. Of counsel were Peter M. Barnett, Linda B. Coe and Matthew Frumin.

Billie J. Ellis, Jr., Kelly, Hart & Hallman, Fort Worth, TX, was on the brief, for amicus curiae, Keystone Holdings, Inc. and American Sav. Bank, F.A.

Daniel J. Goldberg, Housley, Goldberg & Kantarian, P.C., Washington, DC, was on the brief, for amicus curiae, Coast Federal Bank, Union Federal Sav. Bank of Indianapolis, Union Federal Sav. Bank of Frankton and Union Holding Co., Inc.

John C. Millian, Gibson, Dunn & Crutcher, Washington, DC, was on the brief for Trinity Ventures, Ltd. and Castle Harlan, Inc. With him on the brief were Wesley G. Howell, Jr., Gibson, Dunn & Crutcher, New York City and John K. Bush, Gibson, Dunn & Crutcher, Washington, DC.

Paul Blankenstein and John K. Bush, Gibson, Dunn & Crutcher, Washington, DC, were on the brief, for amicus curiae, Dollar Bank, F.S.B.

Laurence H. Tribe, Cambridge, MA, was on the brief for, amicus curiae, AmBase Corp. and carteret Bancorp, Inc. With him on the brief was Brian Stuart Koukoutchos, Bedford, MA, Harvey Silverglate and Andrew Good, Silverglate & Good, Boston, MA, Wesley G. Howell, Jr., Gibson, Dunn & Crutcher, New York City and John C. Millian, Gibson, Dunn & Crutcher, Washington, DC.

Thomas M. Buchanan and Eric W. Bloom, Winston & Strawn, Washington, DC, were on the brief, for amicus curiae, Franklin Financial Group, Inc., Franklin Federal Sav. Bank, and Charter Federal Sav. Bank.

Lloyd N. Cutler, Wilmer, Cutler & Pickering, Washington, DC, was on the brief, for amicus curiae, The Long Island Sav. Bank, FSB and The Long Island Sav. Bank of Centerach FSB. With him on the brief were William B. Richardson, Jr., Michael S. Helfer and Lydia R. Pulley. Also on the brief were Michael J. Chepiga and Eric S. Kobrick, Simpson, Thacher & Bartlett, New York City. Russell E. Brooks, Milbank, Tweed, Hadley & McCloy, New York City, for amicus curiae, The Long Island Sav. Bank, FSB.

Timothy K. Irvine, Gen. Counsel, Franklin Federal Bancorp, Austin, TX, was on the brief, for amicus curiae, Franklin Federal Bancorp.

Before ARCHER, and RICH, NIES, NEWMAN, MAYER, MICHEL, PLAGER, LOURIE, CLEVENGER, RADER, and SCHALL,


Opinion for the court filed by Chief Judge ARCHER, in which Circuit Judges RICH, NEWMAN, MAYER, MICHEL, PLAGER, CLEVENGER, RADER, and SCHALL join. Dissenting opinions filed by Circuit Judges NIES, and LOURIE.

ARCHER, Chief Judge.

The United States appeals the decisions1 of the United States Court of Federal Claims2 granting plaintiffs Winstar Corporation and United Federal Savings Bank, No. 90-8C, plaintiffs...

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