
    Carole TESTWUIDE, Robert Testwuide, Ronald Green, Karen Green, Grace Locasto, Joseph Locasto, George Bunn, Sandra Lyles, and James Lyles, Petitioners-Appellants, v. UNITED STATES, Respondent-Appellee.
    No. MISC 736.
    United States Court of Appeals, Federal Circuit.
    DECIDED: Aug. 1, 2003.
    
      Before RADER, GAJARSA, and LINN, Circuit Judges.
   ORDER

RADER, Circuit Judge.

Carole Testwuide et al. petition for permission to appeal the order certified by the Court of Federal Claims as one involving a controlling question of law with respect 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 United States opposes.

Testwuide et al. are individuals who own residential property near a naval air station or a naval auxiliary landing field in the Tidewater area of Virginia. They filed a complaint in the Court of Federal Claims seeking compensation for inverse condemnation of an avigation easement based on the impact of nearby naval flight activities. Testwuide et al. filed a motion for class certification of two “opt-out” subclasses based on noise and home ownership, which the trial court denied. The trial court noted that the Rules Committee Note to Rule 23 of the Rules of the Court of Federal Claims states that the rule “contemplates only opt-in class certifications, not opt-out classes.” Additionally, the trial court noted that the court has never certified a class action in an overflight takings case. On the merits of the certification issue, the Court of Federal Claims held that “it. would be entirely inappropriate for the court to grant plaintiffs’ motion for class certification because the inquiry of whether the class could be certified based on noise and home ownership alone is inextricably fused with the legal question of what plaintiffs must establish in order to prove a taking within the meaning of the Fifth Amendment.”

This court determines for itself whether to grant permission to appeal an interlocutory order certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir. 1990). Such a ruling is within this court’s complete discretion. Id. In this case, we conclude that granting the petition is not appropriate. We note in particular the trial court’s ruling that the question of law presented in the class certification motion is not a simple legal issue, but rather is intertwined with the merits of the case.

Accordingly,

IT IS ORDERED THAT:

The petition is denied.  