Entergy Nuclear Fitzpatrick, LLC, Entergy Nuclear Indian Point 3, LLC v. United States

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# United States Court of Appeals for the Federal Circuit

ENTERGY NUCLEAR FITZPATRICK, LLC,
ENTERGY NUCLEAR INDIAN POINT 3, LLC,
AND ENTERGY NUCLEAR OPERATIONS, INC.,
Plaintiffs-Respondents,

v.
UNITED STATES,
Defendant-Petitioner.

Miscellaneous Docket No. 108

On Petition for Permission to Appeal pursuant to
28 U.S.C. § 1292(d)(2) from the United States Court of
Federal Claims in case no. 03-CV-2627, Judge Edward J.
Damich.

ON PETITION FOR PERMISSION TO APPEAL

Before NEWMAN, LINN, and REYNA, Circuit Judges.
LINN, Circuit Judge.

ORDER

The United States petitions for permission to appeal
the United States Court of Federal Claims's Novem-
ber 3, 2011 interlocutory order. Entergy Nuclear Fitz-

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patrick, LLC, Entergy Nuclear Indian Point 3, LLC, and
Entergy Nuclear Operations, Inc. ("Respondents") oppose
the petition on the grounds that the appeal should be
expedited and heard en banc.

Under 28 U.S.C. § 1292(d)(2), a judge of the Court of
Federal Claims may certify for appeal an otherwise
unappealable order when he includes "in the order a
statement that a controlling question of law is involved
with respect to which there is a substantial ground for
difference of opinion and that an immediate appeal from
that order may materially advance the ultimate termina-
tion of the litigation." 28 U.S.C. § 1292(d)(2). Whether to
accept an interlocutory appeal is a decision solely within
our discretion. See In re Convertible Rowing Exerciser
Patent Litigation, 903 F.2d 822 (Fed. Cir. 1990).

Based on the arguments in the motions papers, we de-
termine that the United States has met the criteria for an
interlocutory appeal.

Upon consideration thereof,
IT IS ORDERED THAT:
The petition is granted.

FOR THE COURT

JAN 12 2012

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Alexander D. Tomaszczuk, Esq.
Andrew P. Averbach, Esq.
$25

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JAN 12 2012

JAN HORBALY
CLERK