Opinion
2020-121 2020-122
06-18-2020
FAIRHOLME FUNDS, INC., ACADIA INSURANCE COMPANY, ADMIRAL INDEMNITY COMPANY, ADMIRAL INSURANCE COMPANY, BERKLEY INSURANCE COMPANY, BERKLEY REGIONAL INSURANCE COMPANY, CAROLINA CASUALTY INSURANCE COMPANY, CONTINENTAL WESTERN INSURANCE COMPANY, MIDWEST EMPLOYERS CASUALTY INSURANCE COMPANY, NAUTILUS INSURANCE COMPANY, PREFERRED EMPLOYERS INSURANCE COMPANY, THE FAIRHOLME FUND, ANDREW T. BARRETT, Plaintiffs-Petitioners v. UNITED STATES, Defendant-Respondent FAIRHOLME FUNDS, INC., ACADIA INSURANCE COMPANY, ADMIRAL INDEMNITY COMPANY, ADMIRAL INSURANCE COMPANY, BERKLEY INSURANCE COMPANY, BERKLEY REGIONAL INSURANCE COMPANY, CAROLINA CASUALTY INSURANCE COMPANY, CONTINENTAL WESTERN INSURANCE COMPANY, MIDWEST EMPLOYERS CASUALTY INSURANCE COMPANY, NAUTILUS INSURANCE COMPANY, PREFERRED EMPLOYERS INSURANCE COMPANY, THE FAIRHOLME FUND, ANDREW T. BARRETT, Plaintiffs-Respondents v. UNITED STATES, Defendant-Petitioner
NOTE: This order is nonprecedential. On Petition for Permission to Appeal pursuant to 28 U.S.C. Section 1292(d) from the United States Court of Federal Claims in No. 1:13-cv-00465-MMS, Chief Judge Margaret M. Sweeney.
ON PETITION
Before O'MALLEY, WALLACH, and STOLL, Circuit Judges. STOLL, Circuit Judge.
ORDER
Fairholme Funds, Inc. et al. (collectively, "Fairholme") and the United States separately petition pursuant to 28 U.S.C. § 1292(d)(2) to appeal the interlocutory order certified by the United States Court of Federal Claims. Both petitions are unopposed. Owl Creek Asia I, L.P. et al.; Appaloosa Investment Limited Partnership I et al.; Akanthos Opportunity Fund, L.P.; CSS, LLC; and Mason Capital L.P. et al. (collectively, "Owl Creek") move for leave to file a brief amici curiae in support of neither party.
This court determines for itself whether it will grant permission to appeal an interlocutory order certified by a trial court. See In re Convertible Rowing Exerciser Patent Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). We agree with the Claims Court and the parties that at least one of the issues raised by the certified order appears to satisfy the criteria set forth in § 1292(d) and warrants immediate review. We deem it proper to grant both petitions, leaving it ultimately up to the merits panel to decide what issues are appropriate to address on interlocutory appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The petitions are granted. This case is transferred to the regular docket. The appeals will be consolidated. Fairholme's appeal will be designated as the lead appeal, and the government's appeal will be designated as a cross-appeal. Fairholme's opening brief is due within 60 days of the date of filing of this order.
(2) Owl Creek's motion is granted to the extent that the amicus brief is accepted for filing. Any request for further relief from the court should be made after docketing.
FOR THE COURT
June 18, 2020
Date
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court s28