HEALTHESTATE, LLC v. US , No. 20-137 (Fed. Cir. 2020)

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Case: 20-137 Document: 26 Page: 1 Filed: 09/29/2020 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ HEALTHESTATE, LLC, Plaintiff-Respondent v. UNITED STATES, Defendant ASM RESEARCH, LLC, Defendant-Petitioner ______________________ 2020-137 ______________________ On Petition for Permission to Appeal pursuant to 28 U.S.C. Section 1292(d)(2) from the United States Court of Federal Claims in No. 1:18-cv-00034-DAT, Judge David A. Tapp. ______________________ ON PETITION ______________________ Before NEWMAN, LOURIE, and HUGHES, Circuit Judges. PER CURIAM. ORDER Case: 20-137 Document: 26 Page: 2 Filed: 09/29/2020 HEALTHESTATE, LLC 2 v. US ASM Research, LLC petitions for permission to appeal pursuant to 28 U.S.C. § 1292(d)(2) from the interlocutory order denying its motion to dismiss certified by the United States Court of Federal Claims. HEALTHeSTATE, LLC (“HeS”) opposes the petition. The United States submits a brief amicus curiae in response to this court’s August 10, 2020 order. ASM moves for leave to file a reply in support of its petition and a response to the United States’ brief, each of which HeS opposes. Under the express language of § 1292(d)(2), this court has “discretion” whether to “permit an appeal” under the provision. See Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 n.9 (1994) (noting “broad” discretion under the similar provision of 28 U.S.C. § 1292(b) for interlocutory appeals from United States district courts). Having considered the matter, we decline to permit interlocutory review here. Accordingly, IT IS ORDERED THAT: (1) The petition for permission to appeal is denied. (2) The motion for leave to file a reply is granted. The reply, ECF No. 18-2, is accepted for filing. (3) The motion for leave to file a response to the United States’ brief is granted. The response, ECF No. 25-2, is accepted for filing. FOR THE COURT September 29, 2020 Date s35 /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court

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