No. 03-5131, 03-5145.

407 F.3d 1352 (2005)

WESTFED HOLDINGS, INC., Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

May 12, 2005.

Attorney(s) appearing for the Case

Rowan D. Wilson, Cravath, Swaine & Moore LLP, of New York, New York, argued for plaintiff-cross appellant. With him on the brief was Thomas G. Rafferty.

Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With her on the brief were Stuart E. Schiffer, Deputy Assistant Attorney General; David M. Cohen, Director; and Ashley N. Bailey, Jane M.E. Peterson, Delisa M. Sanchez, Edward P. Sullivan, and Tonia J. Tornatore, Trial Attorneys. Of counsel was Maureen A. Delaney.

Before RADER, GAJARSA, and PROST, Circuit Judges.

PROST, Circuit Judge.

This appeal is another in a series of Winstar-related cases. Westfed Holdings, Inc. ("Westfed") commenced a lawsuit on its behalf and derivatively on behalf of the insolvent thrift, Western Federal Savings and Loan Association ("New Western" or "Western"), alleging that the federal government's passage and imposition of the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA") breached the government's agreement to forbear...

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