
    Robert F. CHRISTIAN et al. Plaintiff-Respondent, v. UNITED STATES, Defendant-Petitioner.
    No. 704.
    United States Court of Appeals, Federal Circuit.
    Aug. 2, 2002.
    Before LOURIE, GAJARSA, and LINN, Circuit Judges.
   LOURIE, Circuit Judge.

ORDER

The United States petitions for permission to appeal the order certified by the Court of Federal Claims 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). Robert F. Christian et al. respond.

In this case, the Court of Federal Claims concluded that the 1992 Army Lieutenant Colonel Selective Early Retirement Board (SERB) used instructions impermissibly favoring women and minorities. The tiial court certified a class of over 1,000 nonminority males forced to retire pursuant to the SERB review and determined that all potential class members could recover back pay and benefits. The Court of Federal Claims rejected the United States’ contention that harmless error analysis should apply in determining the success of a military officer alleging discrimination in a retention decision, and denied the United States’ motion for remand to the Secretary of the Army for determination by a newly constituted SERB of which class members would have been forced to retire regardless of the instructions.

The United States argues that resolution of this unsettled area of law concerning the applicability of the harmless error doctrine in this context may materially advance the case by saving costs and preserving resources during the damages determination for each class member. As stated by the Court of Federal Claims: “Considerable efforts and resources will be wasted were individual plaintiffs to proceed with their proving them separate recovery amounts, only to find the case remanded to the Secretary [of the Army] by the Federal Circuit.” Christian v. United States, 49 Fed. Cl. 720, 727 (2001).

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 Litigation, 903 F.2d 822 (Fed.Cir.1990). Such a ruling is within this court’s complete discretion. Id. In this case, we agree with the trial court and both parties that the order satisfies the criteria and that granting the petition is appropriate.

Accordingly,

IT IS ORDERED THAT:

(1) The petition for permission to appeal is granted.

(2) The revised official is reflected above.  