
    CROMAN CORPORATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
    No. 03-5083.
    United States Court of Appeals, Federal Circuit.
    Feb. 2, 2004.
    Before LOURIE, LINN, and PROST, Circuit Judges.
   ORDER

LINN, Circuit Judge.

The United States moves without opposition to stay briefing. Croman Corporation moves to vacate the decision of the United States Court of Federal Claims decision in Croman Corp. v. United States, 49 Fed. Cl. 776 (2001) and to remand to the trial court for further proceedings. The United States takes no position with respect to Croman’s motion.

Croman sought damages after the government suspended performance of timber sale contracts following the listing of a seabird, the marbled murrelet, as threatened under the Endangered Species Act. In the trial court, Croman contended that the contracts did not provide authority for the government to unilaterally suspend performance. The trial court disagreed and ruled in favor of the government.

Croman argues that the trial court’s decision should be vacated in light of this court’s recent decision in Scott Timber Co. v. United States, 333 F.3d 1358 (Fed.Cir. 2003). Croman argues that in Scott Timber we determined that a contractual clause substantially similar to the one at issue in this case did not authorize the government to suspend unilaterally work on a contract. We agree that it is appropriate to vacate and remand under these circumstances.

Accordingly,

IT IS ORDERED THAT:

(1) The United States’ motion to stay is moot.

(2) Croman’s motion to vacate and remand for further proceedings is granted.

(3) Each side shall bear its own costs.  