Shawn Montee, Inc. v. Johanns

131 F. App'x 304

Opinion

ORDER

LOURIE, Circuit Judge.

Shawn Montee, Inc. (doing business as Shawn Montee Timber Company) (SMTC) petitions for permission to appeal the order certified by the United States Department of Agriculture Board of Contract Appeals (AGBCA) in Shawn Montee, Inc., Nos.2004-153-R, 2004-154-R, 2004-155-R, 2004-156-R, and 2004-157-R (Feb. 16, 2005) 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. 28 U.S.C. § 1292(d)(2). The Department of Agriculture opposes.

The AGBCA certified for interlocutory appeal the following question:

Whether the contract clause C[T]6.01 limits the Forest Service’s liability for suspension caused by its own failure to meet its pre-award environmental obligations.

The decision whether to grant a petition for permission to appeal is within this court’s discretion. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990). In this case, we conclude that the better course is for the AGBCA to develop the factual record and fully adjudicate the legal issues prior to appellate review.

Accordingly,

IT IS ORDERED THAT:

The petition for permission to appeal is denied.