American Management Systems, Inc. v. United States , 58 F. App'x 470 ( 2003 )

ORDER

MICHEL, Circuit Judge.

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 with respect to which there is a substantial ground for difference of opinion and where an immediate appeal may materially advance the ultimate termination of the litigation. American Management Systems, Inc. (AMS) opposes.

AMS filed suit against the United States challenging the Federal Retirement Thrift Investment Board’s termination of the contract between the Thrift Board and AMS for default. The contract related to AMS’s development of an automated record keeping system for the Thrift Saving Plan (TSP). The United States moved to dismiss for lack of subject matter jurisdiction based on the nonappropriated funds doctrine, 28 U.S.C. § 2517(a), arguing that the TSP contract was not financed from general federal revenues, but rather funded out of private monies placed in the Thrift Savings Fund. AMS opposed the motion, advancing several independent reasons why the nonappropriated funds doctrine did not apply. The Court of Federal Claims denied the motion to dismiss on one ground and did not address AMS’s remaining arguments. The trial court subsequently certified its order for immediate appeal pursuant to 28 U.S.C. § 1292(d)(2).

This court has complete discretion to grant or deny a petition for permission to appeal. In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990). In this case, we are not convinced that immediate interlocutory review of the trial court’s order is warranted. We are particularly persuaded by AMS’s argument that immediate interlocutory review may not advance the ultimate termination of the litigation because our decision on appeal, either affirming or reversing, would not decide the case. If we affirmed, the case would continue. If we reversed, the trial court would still be required to consider AMS’s remaining arguments regarding jurisdiction.

Accordingly,

IT IS ORDERED THAT:

The United States’ petition for permission to appeal is denied.