Fairholme Funds, Inc. v. United States

Opinion

Case: 20-121 Document: 18 Page: 1 Filed: 06/18/2020

NOTE: This order is nonprecedential.

United States Court of Appeals for the 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 ______________________

2020-121 ______________________

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. -------------------------------------------- Case: 20-121 Document: 18 Page: 2 Filed: 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-Respondents

v.

UNITED STATES, Defendant-Petitioner ______________________

2020-122 ______________________

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 Case: 20-121 Document: 18 Page: 3 Filed: 06/18/2020

FAIRHOLME FUNDS, INC. v. US 3

U.S.C. § 1292(d)(2) to appeal the interlocutory order certi- fied by the United States Court of Federal Claims. Both petitions are unopposed. Owl Creek Asia I, L.P. et al.; Ap- paloosa 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 fur- ther relief from the court should be made after docketing. FOR THE COURT

June 18, 2020 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court s28