Free Motion to Certify Interlocutory Appeal - District Court of Federal Claims - federal

Case 1:04-cv-01544-LMB

Document 83

Filed 10/19/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ________________________________ ) THE ELLAMAE PHILLIPS COMPANY, ) a Colorado Registered Limited ) Liability Partnership, ) ) Plaintiff, ) No. 04-1544 L v. ) ) Judge Lawrence M. Baskir UNITED STATES OF AMERICA, ) ) Defendant. ) _______________________________ ) UNITED STATES' MOTION TO CERTIFY INTERLOCUTORY APPEAL AND MOTION TO STAY PROCEEDINGS PENDING RESOLUTION OF INTERLOCUTORY APPEAL Defendant, the United States of America, hereby requests that the Court certify its July 3, 2007 Opinion ("July Order") to the United States Court of Appeals for the Federal Circuit, pursuant to 28 U.S.C. § 1292(d)(2). The United States also requests that the Court stay proceedings in this matter until the Federal Circuit resolves the United States' petition for interlocutory appeal.1/ The question of the United States' liability, as analyzed in the July

If the Court grants this Motion, the United States intends to file its petition for interlocutory appeal with the Federal Circuit in accordance with Fed. Cir. R. 5. 1

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Case 1:04-cv-01544-LMB

Document 83

Filed 10/19/2007

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Order, satisfies the three-part test for certification established by 28 U.S.C. § 1292(d)(2). As discussed in the accompanying memorandum, the United States requests that the Court certify the July Order for interlocutory appeal and stay proceedings until the Federal Circuit resolves the United States' petition for interlocutory appeal. In order to facilitate this certification, the United States also respectfully requests that the Court amend its July 2007 Order to include the express findings required by 28 U.S.C. § 1292(d)(2): Because this order involves a controlling question of law with respect to which there is a substantial ground for difference of opinion, and an immediate appeal from this order would materially advance the ultimate termination of the litigation, the court certifies to the United States Court of Appeals for the Federal Circuit for its consideration whether to permit an appeal to be taken from this order should a timely application be made to that court. This case is stayed pending further order. The United States shall file a status report within ten days of any action on its application by the Federal Circuit. A memorandum in support of this motion is filed separately.

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Case 1:04-cv-01544-LMB

Document 83

Filed 10/19/2007

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Respectfully submitted this 19th day of October, 2007. RONALD J. TENPAS Acting Assistant Attorney General Environment & Natural Resources Div. /s/ William J. Shapiro WILLIAM J. SHAPIRO Trial Attorney United States Department of Justice Environment and Natural Resources Div. Natural Resources Section 501 I Street Suite 9-700 Sacramento, CA 95814 (916) 930-2207 (phone) (916) 930-2210 (fax)

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