American Telephone & Telegraph Co. v. United States

ORDER AMENDING OPINION OF FEBRUARY 7, 1995 TO PROVIDE CERTIFICATION FOR INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(d)(2)

WIESE, Judge.

I

On February 7, 1995, this court issued an opinion in this case determining, among other issues, (i) that the Navy, in failing to conduct a technical risk evaluation before awarding plaintiff a research and development contract on a fixed-price incentive basis, had acted in violation of statutory restrictions governing the obligation and expenditure of appropriated funds, (ii) that the contract resulting from the Navy’s award was void ab initio, and (in) that plaintiff was to be compensated for its nearly-completed performance pursuant to an implied-in-fact contract with the amount of compensation to be determined on a quantum meruit basis. To facilitate the quantum meruit determination the court ordered further fact development, either by stipulation between the parties or by trial.

Both sides now come before the court requesting certification of the court's opinion under 28 U.S.C. § 1292(d)(2) to facilitate an immediate appeal. Under the criteria enumerated in the referenced statute, certification of an interlocutory order is appropriate when the order involves “a controlling question of law ... with respect to which there is a substantial ground for difference of opinion and ... an immediate appeal from that order may materially advance the ultimate termination of the litigation.” In the judgment of this court, this case warrants certification for immediate appeal.

II

The controlling questions in the case are:

(i) whether a contract executed in violation of statutory restrictions on the obligation and expenditure of appropriated funds may be declared void from the start at the instance of the performing contractor, and, if so,

(ii) whether compensation for benefits conferred upon the Government (pursuant to the voided contract) can be predicated on an implied-in-fact contract with the amount of recovery to be determined pursuant to unjust enrichment principles.

In this court’s view, each of the above-stated questions, when examined in light of existing case law authority and the analyses deducible therefrom, could be answered differently than they are in the court’s opinion of February 7, 1995. Thus, the possibility of a different outcome on appeal is not remote; and a different outcome on either question would end this litigation.

Given these considerations and the protracted trial proceedings now facing the parties as a consequence of the court’s opinion of February 7, 1995, the allowance of an immediate appeal from that opinion would be in the interests of justice and judicial economy. Moreover, the benefits of such an appeal extend beyond the boundaries of the instant case. Defendant has advised that this court’s ruling puts in doubt the legality of a large number of Department of Defense contracts covered by appropriation restrictions of the sort involved in the instant case.

III

The three-prong test set forth in 28 U.S.C. § 1292(d)(2) is designed to weigh the relative benefits of an immediate appeal; thus the “three factors should be viewed together as the statutory language equivalent of a direction to consider the probable gains and losses of immediate appeal.” 16 Charles A. Wright, et al., Federal Practice and Procedure § 3930, at 156 (1977); see 9 James W. Moore, et al., Moore’s Federal Practice ¶ 110.22[2] (1995). This court has considered the burdens and benefits attendant to the allowance of an immediate appeal and is of the view that much can be gained by having the court of appeals address the controlling questions in the case on an interlocutory basis rather than at the conclusion of what could otherwise prove to be a much protracted lawsuit.

Accordingly, the court’s opinion in the above-captioned case, issued February 7, 1995, is amended in accordance with 28 U.S.C. § 1292(d)(2), by adding the following:

The court is of the view that this opinion involves controlling questions of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the opinion may materially advance the ultimate termination of the litigation.