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ELECTRIC POWER SUPPLY ASS'N v. F.E.R.C.

No. 03-1182.

391 F.3d 1255 (2004)

ELECTRIC POWER SUPPLY ASSOCIATION, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Massachusetts Municipal Wholesale Electric Company, et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided December 10, 2004.

Attorney(s) appearing for the Case

Robert C. Fallon argued the cause for petitioner. With him on the briefs were Larry F. Eisenstat, John Michael Adragna, Randolph Lee Elliott, and Scott H. Strauss. Julie Simon entered an appearance.

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

Before: EDWARDS and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge.

Section 557(d) of the Administrative Procedure Act ("APA"), enacted as part of the Government in the Sunshine Act, Pub. L. No. 94-409, § 4(a), 90 Stat. 1241, 1246 (1976)(the "Sunshine Act"), prohibits "ex parte communication[s] relevant to the merits of [a prescribed] proceeding" between an "interested person outside the agency" and an agency decision maker....

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