## United States Court of Appeals for the Federal Circuit

02-1485

SONY ELECTRONICS, INC.,

> Plaintiff-Appellant,

v\.

UNITED STATES,

> Defendant-Appellee,

[Thomas C. Goldstein]{.underline}, Goldstein & Howe, P.C., of
Washington, DC, argued for plaintiff-appellant. On the brief were [John
J. Galvin]{.underline}, Galvin & Mlawski, of New York, New York,
[Laurence H. Tribe]{.underline}, and [Charles Fried]{.underline}, of
Cambridge, Massachusetts.

[Jonathan S. Lawlor]{.underline}, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. On the brief were [Peter
D. Keisler]{.underline}, Assistant Attorney General; [David M.
Cohen]{.underline}, Director; and [Jeanne E. Davidson]{.underline},
Deputy Director; [Todd M. Hughes]{.underline}, Assistant Director; and
[Paul G. Freeborne]{.underline}, Trial Attorney.

Appealed from: United States Court of International Trade

Chief Judge Jane A. Restani

United States Court of Appeals for the Federal Circuit

02-1485

SONY ELECTRONICS, INC.,

Plaintiff-Appellant,

v\.

UNITED STATES,

Defendant-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: September 1, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MICHEL, SCHALL, and LINN, [Circuit Judges]{.underline}.

PER CURIAM.

In 1998, the Supreme Court affirmed our court's holding that the Harbor
Maintenance Tax ("HMT") was unconstitutional as applied to exports.
[United States v. U.S. Shoe Corp.]{.underline}, 523 U.S. 360 (1998),
[aff'g]{.underline} [U.S. Shoe Corp. v. United States]{.underline}, 114
F.3d 1564 (Fed. Cir. 1997). In [International Business Machines Corp. v.
United States]{.underline}, 201 F.3d 1367 (Fed. Cir. 2000)
("[IBM]{.underline}"), [reh'g en banc denied]{.underline} (Fed. Cir. May
31, 2000), [cert. denied]{.underline}, 531 U.S. 1183 (2001), our court
held that prejudgment interest[^1] was unavailable on refunds of export
HMT, as Congress had not waived the federal government's sovereign
immunity by expressly consenting to such interest. We reaffirmed this
holding in [U.S. Shoe Corp. v. United States]{.underline}, 296 F.3d 1378
(Fed Cir. 2002) ("[U.S. Shoe]{.underline}"), [reh'g en banc
denied]{.underline} (Fed. Cir. Oct. 22, 2002), [cert.
denied]{.underline}, 538 U.S. 1056 (2003). In the instant case,
plaintiff Sony Electronics, Inc. nonetheless sought prejudgment interest
on an export HMT refund. The United States Court of International Trade
granted summary judgment to the defendant United States, holding that
Sony had no right to prejudgment interest. [Sony Elecs., Inc. v. United
States]{.underline}, No. 98-07-02438 (Ct. Int'l Trade Dec. 11, 2001).
Sony timely appealed to our court, which has jurisdiction under 28
U.S.C. § 1295(a)(5).[^2]

On appeal, Sony has candidly acknowledged that our court's earlier
decisions \-- which bind this panel, [see]{.underline} [Newell Cos. v.
Kenney Mfg. Co.]{.underline}, 864 F.2d 757, 765 (Fed. Cir. 1988) \--
doom Sony's claim for prejudgment interest on its export HMT refund.
Indeed, stating that its "argument is squarely precluded by \[the\]
panel ruling in \[[IBM]{.underline}\] such that proceedings before a
panel would be futile," Sony petitioned for initial [en
banc]{.underline} hearing of this appeal, to allow for reconsideration
of the holdings in [IBM]{.underline} and [U.S. Shoe]{.underline}. Sony
argued that these holdings were incorrect and that the issue was of
"exceptional importance" meriting [en banc]{.underline} treatment.
Sony's petition was denied by the full court, and thereafter the case
was assigned to this panel.

Sony asks the panel to urge the full court to take this appeal [en
banc]{.underline} to reconsider the [IBM]{.underline} and [U.S.
Shoe]{.underline} holdings. Such [en banc]{.underline} referrals are
made only when a panel is persuaded that a case merits [en
banc]{.underline} treatment.[^3] The panel's inquiry begins with Federal
Rule of Appellate Procedure 35, which states in pertinent part:

> An en banc hearing or rehearing is not favored and ordinarily will not
> be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity
    of the court's decisions; or

(2) the proceeding involves a question of exceptional importance.[^4]

Here, Sony has relied solely on the existence of a "question of
exceptional importance" as justification for [en banc]{.underline}
review.

The panel has not been persuaded that the availability of prejudgment
interest on an HMT export refund is a question of exceptional
importance. First, the number of cases in which this issue could arise
is finite and diminishing, as the federal government has not collected
the HMT on exports since the Supreme Court's 1998 decision holding
unconstitutional the export HMT. No new case for refund of export HMT
has accrued in over five years, and no new cases will accrue in the
future. Second, looking backward, the life span of the HMT on exports
was relatively short: It was born in 1986, when Congress enacted the HMT
as part of the Water Resources Development Act of 1986, 26 U.S.C. §§
4461-4462, and was finally laid to rest by the Supreme Court in 1998.
The short life span of the HMT on exports further cabins the import of
the availability of prejudgment interest on export HMT refunds. Third,
while Sony avers that, in monetary terms, the amount of cumulative
prejudgment interest on export HMT refunds would be on the order of
hundreds of millions of dollars, this cumulative figure would be spread
across what Sony estimates to be thousands of pending refund claims.
Sony has made no showing that the amounts are compelling when considered
on a per-claim basis.

We must be mindful that our full court has already thrice deemed this
very issue not sufficiently important to merit [en banc]{.underline}
treatment: The full court denied motions for [en banc]{.underline}
rehearing after both our [IBM]{.underline} and [U.S. Shoe]{.underline}
decisions, and the full court denied Sony's petition for initial [en
banc]{.underline} hearing in the instant appeal. Moreover, we note that
the Supreme Court twice decided against issuing a writ of
[certiorari]{.underline} to address the availability of prejudgment
interest on export HMT refunds, denying the [certiorari]{.underline}
petitions filed after our [IBM]{.underline} and [U.S. Shoe]{.underline}
decisions. The denial of these petitions suggests that the Supreme Court
was not persuaded that the petitions presented "an important question of
federal law." [See]{.underline} S. Ct. R. 10 (stating that whether a
"state court or a United States court of appeals has decided an
important question of federal law that has not been, but should be,
settled by this Court, or has decided an important federal question in a
way that conflicts with relevant decisions of this Court" is among the
factors that "although neither controlling nor fully measuring the
Court's discretion, indicate the character of the reasons the Court
considers" in evaluating a petition for [certiorari]{.underline}).

For all of these reasons, we do not refer this case to the full court
for an [en banc]{.underline} poll, and, as it must be under the holdings
in [IBM]{.underline} and [U.S. Shoe]{.underline}, the judgment of the
Court of International Trade is

[AFFIRMED]{.underline}.

# 

[^1]: By "prejudgment interest" we mean interest accruing from the date
    of an HMT tax payment to the date of an administrative or judicial
    judgment allowing a refund of this payment.

[^2]: Shortly after filing its appeal, Sony filed a motion for stay of
    further proceedings. The motion was granted, and the proceedings
    were stayed. On July 15, 2003, Sony filed a proposal for further
    proceedings of its appeal, which led to the lifting of the stay. On
    October 10, 2003, Sony petitioned for initial [en banc]{.underline}
    hearing. On October 24, 2003, at the request of the court, the
    defendant United States submitted a response. On November 6, 2003,
    the full court denied Sony's petition for initial [en
    banc]{.underline} hearing. The court assigned the case to the
    instant panel. Briefing was completed on January 22, 2004, and the
    panel heard argument on June 7, 2004.

[^3]: A panel referral alone does not trigger [en banc]{.underline}
    reconsideration of prior precedent. A majority of the active judges
    in our court then must vote to hear the case [en banc]{.underline}.
    [See]{.underline} Fed. R. App. P. 35.

[^4]: As the rule states, one (or both) of the two articulated grounds
    is "ordinarily" the justification for taking a case [en
    banc]{.underline}. These two grounds are not, however, exclusive,
    and our court will take a case [en banc]{.underline} for any
    appropriate reason.