Free Joint Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00718-ECH

Document 75-4

Filed 03/25/2008

Page 1 of 1

Slip Copy Slip Copy, 2008 WL 586408 (C.A.Fed.) (Cite as: Slip Copy)

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Ellamae Phillips Co. v. U.S. C.A.Fed.,2008. Only the Westlaw citation is currently available.This case was not selected for publication in the Federal Reporter.Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Federal Circuit Rule 32.1 and Federal Circuit Local Rule 32.1. (Find CTAF Rule 32.1) United States Court of Appeals,Federal Circuit. ELLAMAE PHILLIPS CO., Plaintiff-Respondent, v. UNITED STATES, Defendant-Petitioner. No. 04-CV-1544. Feb. 7, 2008. 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. 04-CV-1544, Judge Lawrence M. Baskir. Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON, Circuit Judge. ON PETITION FOR PERMISSION TO APPEAL RADER, Circuit Judge. ORDER *1 The United States petitions for permission to appeal the order certified by the United States Court of Federal Claims in Ellamae Phillips Co. v. United States, No. 04-1544, as one involving a controlling question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. See28 U.S.C. § 1292(d)(2). Ellamae Phillips Co. (Ellamae) opposes. Ellamae filed a complaint in the trial court, asserting that the government's preservation for future rail use of a federally-granted railroad right-of-way crossing Ellamae's property, and its interim use as a recreational trail, constituted an uncompensated

taking. The trial court stayed the case pending this court's decision in Hash v. United States, 403 F.3d 1308 (Fed. Cir2005), which involved similar claims. Following this court's decision in Hash, the trial court granted Ellamae's motion for summary judgment, finding that the conversion of the land at issue to a public trail constituted a taking and that the United States is liable for the taking. Subsequently, the trial court stayed further proceedings and granted the United States' motion to certify the trial court's order for permissive appeal. The trial court stated that the order involved a controlling question of law with respect to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal an interlocutory order certified by a trial court. SeeIn re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990); 28 U.S .C. § 1292(d)(2) ("the Federal Circuit may, in its discretion, permit an appeal to be taken from such order"). We determine that granting the petition in these circumstances is warranted. Accordingly, IT IS ORDERED THAT: The petition for permission to appeal is granted. C.A.Fed.,2008. Ellamae Phillips Co. v. U.S. Slip Copy, 2008 WL 586408 (C.A.Fed.) END OF DOCUMENT

Blendu v. US, No. 01-718L (Fed. Cl.) Attachment 3 to Joint Status Report (filed March 25, 2008)

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