FAIRHOLME FUNDS INC v. UNITED STATES (2020)

United States Court of Appeals, Federal Circuit.

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

2020-121

Decided: June 18, 2020

Before O’Malley, Wallach, and Stoll, Circuit Judges.

Charles J. Cooper, Cooper & Kirk, PLLC, Washington, DC, for Plaintiffs-Petitioners Gerard Sinzdak, Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendant-Respondent Lawrence D. Rosenberg, Attorney, Jones Day, Washington, DC, for Amici Curiae Akanthos Opportunity Fund, L.P., Appaloosa Investment Limited Partnership I, Azteca Partners LLC, CSS, LLC, Mason Capital L.P., Mason Capital Master Fund L.P., Owl Creek Asia I, L.P., Owl Creek Asia II, L.P., Owl Creek Asia Master Fund, Ltd., Owl Creek Credit Opportunities Master Fund, L.P., Owl Creek I, L.P., Owl Creek II, L.P., Owl Creek Overseas Master Fund, Ltd., Owl Creek Sri Master Fund, Ltd., Palomino Fund Ltd., Palomino Master Ltd.,

ON PETITION

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 re-view. 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.

Stoll, Circuit Judge.

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