Opposition Brief — Jackson v. Forest Hills Early Learning Center (Nos. 88-932, 88-730)

IN THE

Supreme Court of the United

OCTOBER TERM, 1988 —

LARRY D. JACKSON, AS DIRECTOR OF THE DEPARTMENT OF

SOCIAL SERVICES OF THE COMMONWEALTH OF VIRGINIA,

and

GRACE BAPTIST CHURCH, et al., INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED,

" Petitioners,

FOREST HILLS EARLY LEARNING CENTER, INC.,

ACADEMY DAY CARE, INC., AND

HOLLOMAN CHILD CARE CENTERS, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN VANDERSTAR

(Counsel of Record)

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20044

(202) 662-5540

JOHN E. HEINTZ

STEPHANIE E. HUMBERT

POPHAM, HAIK, SCHNOBRICH -

& KAUFMAN, LTD.

1800 M Street, N.W.

Suite 300 South

Washington, D.C. 20036

(202) 828-5300

Counsel for Respondents

ee ees

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 2 W

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QUESTION PRESENTED

Do child care centers subject to state licensing require-

ments have standing to challenge a statute exempting

church-run centers from those requirements as an estab-

lishment of religion?

(i)

TABLE OF CONTENTS

Page

pA EN te gt 2 gg | > SE iv

COUNTERSTATEMENT OF THE CASE .................... 1

REASONS FOR DENYING THE WRIT ............0..0..... 6

I. Plaintiffs’ Standing Was Resolved in 1981_..... 6

II. Plaintiffs Have Standing to Challenge the Ex-

emption As An Impermissible Establishment of

Ee A ae a nc a ANS Re 9

LT ghana gain ca ackaeaesiabs 12

(iii)

iv

TABLE OF AUTHORITIES

Cases . Page

Arkansas Writers’ Project, Inc. v. Ragland, ——

U.S. ] 8 Stes; 2s} ne 5, 6, 10

Armco Inc. v. Hardesty, 467 U.S. 638 (1984) _...... 10

Capital Investors Co. v. Estate of Morrison, 584

F.2d 652 (4th Cir. 1978), cert. denied, 440 U.S.

IRL air ISSIR IA RP Oa one a es 9

Carey v. Brown, 447 U.S. 455 (1980) -...............-... 10

Dickinson v. Auto Center Mfg. Co., 733 F.2d 1092

I A en aceahaneeht 9

Forest Hills Early Learning Center, Inc. v. Luk-

hard, 661 F. Supp. 300 (E.D. Va. 1987) ............. 5)

Forest Hills Early Learning Center, Inc. v. Luk-

hard, 789 F.2d 295 (4th Cir. 1986) .................... . 5,8

Forest Hills Early Learning Center, Inc. v. Luk

hard, 728 F.2d 230 (4th Cir. 1984) -............ 3, 4, 7, 8, 10

Forest Hills Early Learning Center, Inc. v. Luk-

hard, 540 F. Supp. 1046 (E.D. Va. 1982) ........... 3

Forest Hills Early Learning Center, Inc. v. Liuvk-

hard, 642 F.2d 448 (4th Cir. 1981) _................... 3, 6

Forest Hills Early Learning Center, Inc. v. Luk-

hard, 487 F. Supp. 1378 (E.D. Va. 1980) _........ 2,6

Forest Hills Early Learning Center, Inc. v. Luk-

hard, 480 F. Supp. 636 (E.D. Va. 1979) _............. 2

Gillette v. United States, 401 U.S. 437 (1971) ........ 9

Gindes v. United States, 740 F.2d 947 (Fed. Cir.),

cert. denied, 469 U.S. 1074 (1984) _......222.. 9

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., No. 86-473, USS. .

Ue ee | )_. FRR ne rene 7

Legal Aid Society of Alameda County v. Brennan,

608 F.2d 1319 (9th Cir. 1979), cert. denied, 447

RIA Ape ince Benn ene 7,8

Lynch v. Donnelly, 465 U.S. 668 (1984) .002002.00.. 9

Mid-Eastern Electronics, Inc. v. First National

Bank, 455 F.2d 141 (4th Cir. 1970) _.....000000002..... 9

NAACP, Boston Chapter v. Harris, 607 F.2d 514

Se a ID Sr ccicchden cicck nshcren sopchasntis uaa sya oa 7

Vv

TABLE OF AUTHORITIES—Continued

Newport News Shipbuilding and Drydock Co. v.

Peninsula Shipbuilders’ Ass’n, 646 F.2d 117

Oe ED Gcraiteis cient casas

Paradise v. Prescott, 585 F. Supp. 72 (M.D. Ala.

1983), aff'd, 767 F.2d 1514 (11th Cir. 1985),

aff'd sub nom. United States v. Paradise, 480

AR s® SIR e ee

Police Dept. of Chicago v. Mosley, 408 U.S. 92

9 /: | Eee eRe GRA ashy are cet ill cet J ast canes. Fees

Simon v. Eastern Kentucky Welfare Rights Or-

gantsation, 426 U.S, BG CAGTG) oacncciovccccc cc cccccccs une.

United States v. SCRAP, 412 U.S. 669 (1973)........

Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc.,

SOS U.. UG CR kien ss ee ee

Warth v. Seldin, 422 U.S. 490 (1975) .....000000...

Statutes

Va. Code § 63.1-196.3 (1979) _.............................000-2-

Page

9

10

7,10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-932

-_

LARRY D. JACKSON, AS DIRECTOR OF THE DEPARTMENT OF

SOCIAL SERVICES OF THE COMMONWEALTH OF VIRGINIA,

and

GRACE BAPTIST CHURCH, et al., INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED,

se Petitioners,

FOREST HILLS EARLY LEARNING CENTER, INC.,

ACADEMY Day CARE, INC., AND

HOLLOMAN CHILD CARE CENTERS, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

COUNTERSTATEMENT OF THE CASE

In 1979, Virginia enacted a statute that exempts all

“child care center|s] operated or conducted under the

auspices of . . . religious institution[s]” from compliance

with the licensing requirements of Virginia Code § 63.1-

196. Va. Code § 63.1-196.3 (1979). Under that enact-

2

ment, a church-run center can exempt itself from the

licensing standards by filing a statement of intent to

operate an exempt child care center and documentary

evidence that it has satisfied certain limited health,

safety and fire code requirements and specified staff-child

ratios. Church-run child care centers that meet these

criteria need not comply with the overwhelming majority

of licensing standards applicable to non-exempt centers.

On February 1, 1980, plaintiffs, three non-sectarian

child care centers operating under licenses issued by the

state, brought this action seeking a declaration that, inter

alia, the exemption of church-run child care centers from

the state’s licensing requirements constitutes an establish-

ment of religion and a denial of equal protection of the

laws.' The Director of the Department of Social Serv-

ices of the Commonwealth of Virginia (“the state”) de-

fended the exemption as a permissible accommodation of

potential free exercise claims of church-run child care

centers. No exempt church-run center sought to inter-

vene at that time.

Shortly after plaintiffs filed their complaint, the state

moved to dismiss the entire action—including plaintiffs’

Establishment Clause claim—for lack of standing. The

district court granted the motion because it concluded

that plaintiffs’ claim of injury depended upon speculation.

Forest Hills Early Learning Center, Inc. v. Lukhard, 487

F. Supp. 1378 (E.D. Va. 1980). On appeal, the Fourth

Circuit concluded that plaintiffs’ standing to raise their

Establishment Clause and Equal Protection Clause claims

could be predicated on financial harm and remanded to

allow plaintiffs to amend their complaint and to substan-

+ +

tiate their allegations of financial harm by affidavit.

+ An earlier action filed in September 1979 was dismissed. Forest

Hills Early Learning Center, Inc. v. Lukhard, 480 F. Supp. 636

E.D. Va. 1979).

3

Forest Hills Early Learning Center, Inc. v. Lukhard,

642 F.2d 448 (4th Cir. 1981) (“Forest Hills I’).

After plaintiffs amended their complaint, supported by

affidavits, the district court denied the state’s renewed

motion to dismiss for lack of standing. See Order, Aug.

4, 1981. Plaintiffs’ subsequent motion for summary judg-

ment, seeking a declaration that the exemption stat-

ute violated, inter alia, the Establishment Clause of the

United States Constitution, was substantiated by the affi-

davits of Margaret D. Miller, James A. Payne, Frederick

Glantz, Paul Boyd, Inez Holloman and Stephen Jones.

These were the same affidavits that had supported plain-

tiffs’ standing allegations concerning injury, and they

formed a part of the factual record that the Fourth Cir-

cuit subsequently found sufficient to entitle plaintiffs to

summary judgment. Forest Hills Early Learning Center,

Inc. v. Lukhard, 728 F.2d 230, 244-45 (4th Cir. 1984)

(“Forest Hilis IT’).

On April 22, 1982, on cross-motions for summary judg-

ment, the district court held that the exemption for

church-run child care centers had a secular purpose of

accommodating potential free exercise claims and thus

did not violate the First Amendment. Forest Hills Early

Learning Center, Inc. v. Lukhard, 540 F. Supp. 1046

(E.D. Va. 1982).

On February 7, 1984, the Fourth Circuit vacated the

district court’s order granting summary judgment in

favor of the state and remanded the action for further

proceedings in accordance with its opinion. Forest Hills

II, 728 F.2d at 247. The court held that “[t]he exemp-

tion, on its face, and as a matter of law was overbroad

in relation to the secular legislative purpose claimed for

it’—the accommodation of free exercise rights of the

exempted centers. /d. at 244.

The court concluded that plaintiffs were entitled to the

entry of summary judgment. However, the court was

\

|

|

4

reluctant to direct entry of judgment in their favor with-

out determining whether and to what extent free exer-

cise rights justifying the exemption, in whole or in part,

did in fact exist. Since there was no evidence in the

record bearing on that issue, the court remanded to per-

mit ‘further evidentiary proceedings . .. devoted to-de-

veloping . . . the extent of any free exercise rights had

by the sectarian institutions in the exempted activities,

and the nature and extent of any compelling state inter-

est in nevertheless regulating those activities.” Jd. at

246. The court “conditionally” denied plaintiffs’ request

for judgment and remanded the action for the limited

purpose of inviting exempt centers, none of which had

theretofore sought to intervene, to intervene as a class.

The court directed that if church-run centers failed to

satisfy the criteria for a class action or if a class were

certified but failed to show the existence of any specific

free exercise rights that would be infringed by specific

child-care regulations, “‘the exemption should be declared

wholly unconstitutional.” /d. at 246.

On remand, a group of four churches, petitioners Grace

Baptist Church, Tabernacle Baptist Church, Berean Bap-

tist Church, and The Rock Church (“the intervening

churches”), moved to intervene on behalf of a class of

church-run centers. Only two other exempt centers filed

affirmative responses to the district court’s notice, but

neither of those centers filed motions to intervene.

The intervening churches filed a motion to certify a

class on October 19, 1984. They asserted that the alleged

class—all centers that had obtained or filed for exemp-

tions—shared a common belief that a child care program

is an integral part of the church ministry, and that any

state regulation of a church-run child care center violates

the free exercise of religion. On January 17, 1°85, the

trial court ruled that there was no basis upon which a

class could be certified. Accordingly, the court entered

5

judgment in favor of plaintiffs. At no time on the first

remand did the state or the intervening churches chal-

lenge plaintiffs’ standing.

On appeal, the state and the intervening churches

challenged the merits of the district court’s order but did

not attack plaintiffs’ standing. The Fourth Circuit ruled

that the district. court, in granting summary judgment

in favor of the plaintiffs, had “denied . . . [the interven-

ing churches] any right to class certification or an op-

portunity to conduct discovery, or to present evidence.”

It thus remanded the proceeding a second time for the

purposes stated in its first opinion. Forest Hills Early

Learning Center, Inc. v. Lukhard, 789 F.2d 295, 297 (4th

Cir. 1986) (“Forest Hills III’’).

On remand, the churches joined in a motion to dismiss

for lack of subject matter jurisdiction challenging plain-

tiffs’ standing to sue on one or more of their claims. The

motion to dismiss for lack of subject matter jurisdiction

was denied on November 24, 1986.

After a hearing on petitioner Grace Baptist Church’s

motion to certify a class, the district court certified a

class on January 9, 1987. The matter was tried on

March 9, 1987. After post trial briefing and argument,

the district court ruled that plaintiffs had demonstrated

injury to support their standing, entered judgment in

their favor and declared the exemption statute unconsti-

tutional. Forest Hills Early Learning Center, Inc. v.

Lukhard, 661 F. Supp. 300 (E.D. Va. 1987).

On May 6, 1988, the Fourth Circuit affirmed the dis-

trict court’s ruling on standing, relying on Arkansas

Writers’ Project, Inc. v. Ragland, U.S. , 107

S. Ct. 1722, 1726 (1987). The Fourth Circuit reviewed

on the merits and held the exemption did not violate the

Establishment Clause.

6

REASONS FOR DENYING THE WRIT

Petitioners contend that the Court should review and

reverse the Fourth Circuit’s ruling on standing. They

argue that the ruling below constitutes an unwarranted

extension of Arkansas Writer’s Project by granting

“standing” to parties who have not suffered injury and

who do not fall within the prudential ‘zone of interests”

protected by the Establishment Clause. Petitioners are

wrong on both counts. Plaintiff-respondents established

in preliminary proceedings and on summary judgment

that Virginia’s disparate treatment of licensed and ex-

empt centers caused them injury. As a group directly

affected by Virginia’s differing treatment of non-religious

centers, plaintiffs clearly fall within the zone of interests

protected by the Establishment Clause.

I. Plaintiffs’ Standing Was Resolved in 1981.

Shortly after plaintiffs filed this action in February

1980, the state moved to dismiss the complaint for lack

of standing. The district court granted the motion be-

cause it found that plaintiffs’ claim of injury depended

upon speculation. Forest Hills Early Learning Center,

Inc. v. Lukherd, 487 F. Supp. 1887 (E.D. Va. 1980).

On appeal, the Fourth Circuit concluded that plaintiffs’

standing to raise their Establishment Clause and Equal

Protection Clause claims could be predicated on financial

harm and remanded to allow plaintiffs to support their

allegations by affidavit. Forest Hills I.

After plaintiffs amended their complaint and substan-

tiated their allegations by affidavit, the district court

denied the state’s renewed motion to dismiss for lack of

standing. See Order, August 4, 1981. The non-exempt

centers’ motion for summary judgment, seeking a decla-

ration that the exemption statute violated, inter alia, the

Establishment Clause of the United States Constitution,

vas supported by affidavits of Margaret D. Miller, James

7

A. Payne, Frederick Glantz, Paul Boyd, Inez Holloman

and Stephen Jones, the same affidavits that support plain-

tiffs’ standing allegations concerning injury. Those affi-

davits formed a part of the factual record that the

Fourth Circuit found sufficient to entitle plaintiffs to

summary judgment. Forest Hills II, 728 F.2d at 233,

244-45. As the district court noted when it found that

the exemption statute violated the Establishment Clause,

a court would not be willing to grant summary judgment

to plaintiffs unless they had successfully satisfied stand-

ing requirements in both preliminary proceedings and on

summary judgment.

The elements for establishing standing were fully sat-

isfied in this case, as both the district court and the

court of appeals concluded. Had the state felt that plain-

tiffs’ evidentiary support for its standing allegations was

insufficient to support summary judgment in their favor,

it should have opposed plaintiffs’ motion for summary

judgment and cross-moved on that issue. See, e.9.,

United States v. SCRAP, 412 U.S. 669, 689 (1973) (if

defendant thought standing allegations untrue, it “should

have moved for summary judgment on the standing is-

sue”) See also Gwaltney of Smithficid, Ltd. v. Chesa-

peake Bay Foundation, Inc., No. 86-473, —— USS. .

108 S. Ct. 376, 385-86 (1987); Simon v. Eastern Ken-

tucky Welfare Rights Organization, 426 U.S. 26, 37

n.15 and 46 n.25 (1976); NAACP, Boston Chapter v.

Harris, 607 F.2d 514, 526 (1st Cir. 1979). Since the

state did not controvert plaintiffs’ evidentiary support for

their standing allegations on summary judgment, plain-

tiffs’ standing was fully established at that point.

The result reached in Lega! Aid Scciety of Alameda

County-v. Brennan, 608 F.2d 1319 (9th Cir. 1979), cert.

denied, 447 U.S. 921 (1980), a case cited by petitioners,

is instructive. There, the original defendants “did not

challenge the factual or legal basis for [plaintiffs’] stand-

8

ing either in their motion to dismiss or in their opposition

to [plaintiffs’] motion for partial summary judgment.”

608 F.2d at 1333. The appellants, who were permitted to

intervene for purposes of appeal, challenged plaintiffs’

standing on appeal. The Ninth Circuit ruled that al-

though “‘the record would be substantially more complete

had appellant been called upon to marshall the facts and

law in support of standing in response to a timely chal-

lenge to standing,” the record was sufficient to support

standing. Id.

Here, the facts in support of standing are stronger.

The state did challenge plaintiffs’ standing. Plaintiffs

were required to marshall facts and law to support their

contentions in opposition to a motion to dismiss and in

support of a motion for summary judgment. The Fourth

Circuit subsequently determined that the facts presented

by plaintiffs were sufficient to support summary judg-

ment in plaintiffs’ favor, and only refrained from direct-

ing the entry of judgment in their favor to permit

churches to show that free exercise rights supported the

exemption. Forest Hills II, 728 F.2d at 246-47.

Plaintiffs’ standing was not questioned between Au-

gust 1981, when the district court denied the state’s sec-

ond motion to dismiss, and November 1986, when the

churches resurrected the issue on the second remand.

The issue was not raised on the appeal decided in Forest

Hi'ls II, on the first remand after the churches inter-

vened or on the appeal resolved in Forest Hills ITI.

Plaintiffs—who had established that they were en-

titled to judgment unless the exempt centers demonstrated

that the child care standards would violate their free

exercise of religion—should not be required to relitigate

issues with parties that entered the case four years after

it began. Petitioners—whose intervention at such a late

stage was made possible solely by the Fourth Circuit’s

invitation to present their free exercise claims—are not

9

free to relitigate issues that were previously resolved or

to raise issues beyond the scope of the remand.”

IL. Plaintiffs Have Standing to Challenge the Exemption

As An Impermissible Establishment of Religion.

The Fourth Circuit correctly held that plaintiffs have

standing to challenge the exemption statute’s constitution-

ality, consistent with this Court’s criteria for standing.

They have suffered both religious and economic injury

sufficient to establish standing. It is beyond dispute that

anyone whose adherence or non-adherence to religion is

used to justify disparate government action has standing

to challenge that action. As Justice O’Connor has stated,

“the Establishment Clause prohibits government from

making adherence to a religion relevant in any way to a

person’s standing in the political community.” See Lynch

v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J.,

concurring.) As the state and churches have observed,

the central purpose of the Establishment Clause is to in-

sure government neutrality in matters of religion. Gil-

lette v. United States, 401 U.S. 437 (1971). By enacting

2 Even if the scope of the remand had not been expressly con-

fined by the Fourth Circuit, the churches are precluded from

relitigating issues resolved before their intervention. As that court

has stated, “an intervenor is held to take the case as he finds it.”

Newport News Shipbuilding and Drydock Co. v. Peninsula Ship-

builders’ Ass’n, 646 F.2d 117, 122 (4th Cir. 1981). An intervenor

is not free to challenge prior orders or judgments. See, e.g., Para-

dise v. Prescott, 585 F. Supp. 72, 75 n.4 (M.D. Ala. 1983), aff'd,

767 F.2d 1514 (11th Cir. 1985), aff'd sub nom. United States v.

Paradise, 480 U.S. 149 (1987). Rather, he is bound by the “law

of the case” doctrine. Gindes v. United States, 740 F.2d 947 (Fed.

Cir.), cert. denied, 469 U.S. 1074 (1984); Dickinson v. Auto Center

Mfg. Co., 733 F.2d 1092, 1096 (5th Cir. 1983); Mid-Eastern Elec-

tronics, Inc. v. First National Bank, 455 F.2d 141, 143 (4th Cir.

1970). As intervenors who have entered this proceeding following

several appeals, the churches are bound by the law of the case

regarding plaintiffs’ standing. Capital Investors Co. v. Estate of

Morrison, 584 F.2d 652, 654 (4th Cir. 1978), cert. denied, 440 U.S.

981 (1979).

10

the exemption statute, Virginia decided to treat church-

run child eare centers differently from centers that are

not affiliated with a religious institution, even if licensed

centers, such as plaintiff Holloman’s, provide religious

training. This differential treatment was clear to the

Fourth Circuit. In 1984, it found:

that the non-exempt centers had to do no more than

hold up the challenged exemption for judicial scru-

tiny to demonstrate its palpable, facial, non-neutral-

ity in respect of religion; the exempted activities are,

by definition, only those of ‘religious institutions’

and the substantiality of the degree of favor con-

ferred upon religion in relation to non-religion is

equally palpable.

Forest Hil’s 11, 728 F.2d at 241 (footnote omitted). The

disparate treatment imposed ,on licersed centers and the

substantial degree of faver conferred upon religious cen-

ters is precisely the kind of injury that supported stand-

ing in eases such as Arkansas Writers’ Project, Inc. v.

Raaland, US. - , 107 S. Ct. 1722, 1726 (1987) ;

Valley Forge Christian College v. Americans United for

Separat > an? State, Ine., 454 U.S. 464

1982); Simon v. Eastern Kentucky Welfare Rights Or-

viization, 426 U.S. 26 (1976); and Warth v. Seldin,

riters Project. for example, the Court

that non-exempt magazines had standing to chal-

lenge a statute granting a sales tax exemption granted

to other similarly situated magazines. 107 S. Ct. at 1726.

Court emphasized that “we have considered claims

vthers similarly situated were exempt from the op-

of a state law adversely affecting the claimant

. ferous cases]. See, e.g., Armco Inc. v. Hardesty,

467 U.S. 6388 104 S. Ct. 2620, 81 L. Ed. 540 (1984) ;

“arey v. Brown, 447 U.S. 455, 100 S. Ct. 2286, 65 L. Ed.

2d 263 ©1980): Police Dept. of Chicago v. Mosley, 408

U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972).” Id.

11

Similarly, in Valley Forge, the Court concluded that

standing may be predicated on either economic injury or

“spiritual injury.” The Court’s indication that “spiritual

injury” would confer standing in no way limits standing

to plaintiffs claiming such injury. Rather, it serves to

emphasize that “injury of any kind, economic or other-

wise, [is] sufficient to confer standing.” 454 U.S. at 486

(emphasis in text, footnote omitted). The Court in Valley

Forge was concerned only that a plaintiff demonstrate

more than an interest shared with all citizens that a state

faithfully adhere to the Constitution. Jd. at 482.

Here, plaintiffs are not simply citizens concerned in

the abstract with Virginia’s adherence to the Constitu-

tion. They are within the group directly subjected to

disparate government treatment as a direct consequence

of their lack of religious affiliation. Thus, they have a

special and far greater interest in challenging the exemp-

tion than citizens having only an abstract concern with

the state’s faithful adherence to the Constitution. They

clearly fall within the zone of interests protected by the

Establishment Clause. See Valley Forge Christian Col-

lege, 454 U.S. at 482.

Moreover, a favorable decision for plaintiffs would

remedy their injuries. If the statute were declared un-

constitutional, the palpable non-neutrality present on the

face of the statute would be eliminated. All child care

centers, regardless of religious affiliation, would then be

treated by the state in the same manner, as they had

been for more than thirty years before the exemption

was enacted. Thus, as determined seven years ago, plain-

tiffs have standing to challenge the constitutionality of

the exemption statute.

12

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

JOHN VANDERSTAR

(Counsel of Record)

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20044

(202) 662-5540

JOHN E. HEINTZ

STEPHANIE E. HUMBERT

POPHAM, HAIK, SCHNOBRICH

& KAUFMAN, LTD.

1800 M Street, N.W.

Suite 300 South

Washington, D.C. 20036

(202) 828-5300

Counsel for Respondents