
    ELLAMAE PHILLIPS CO., Plaintiff-Respondent, v. UNITED STATES, DefendantPetitioner.
    Misc. No. 867.
    United States Court of Appeals, Federal Circuit.
    Feb. 7, 2008.
    Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON, Circuit Judge.
   ON PETITION FOR PERMISSION TO APPEAL

RADER, Circuit Judge.

ORDER

The United States petitions for permission to appeal the order certified by the United States Court of Federal Claims in Ellamae Phillips Co. v. United States, 77 Fed.Cl. 387 (2007), 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. See 28 U.S.C. § 1292(d)(2). Ellamae Phillips Co. (Ellamae) opposes.

Ellamae filed a complaint in the trial court, asserting that the government’s preservation for future rail use of a federally-granted railroad right-of-way crossing Ellamae’s property, and its interim use as a recreational trail, constituted an uncompensated taking. The trial court stayed the case pending this court’s decision in Hash v. United States, 403 F.3d 1308 (Fed. Cir.2005), which involved similar claims. Following this court’s decision in Hash, the trial court granted Ellamae’s motion for summary judgment, finding that the conversion of the land at issue to a public trail constituted a taking and that the United States is liable for the taking.

Subsequently, the trial court stayed further proceedings and granted the United States’ motion to certify the trial court’s order for permissive appeal. The trial court stated that the order involved a controlling question of law with respect to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation.

Ultimately, this court must exercise its own discretion in deciding 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); 28 U.S.C. § 1292(d)(2) (“the Federal Circuit may, in its discretion, permit an appeal to be taken from such order”). We determine that granting the petition in these circumstances is warranted.

Accordingly,

IT IS ORDERED THAT:

The petition for permission to appeal is granted.  