Carnival Cruise Lines, Inc., Hal Antillen, N.v., Halshipping Ltd., and Wind Surf Limited, Plaintiffs-petitioners, v. the United States, Defendant-respondent, 92 F.3d 1203 (Fed. Cir. 1996)

ORDER

Carnival Cruise Lines, Inc. et al. petition for permission to appeal the June 6, 1996 order certified by the Court of International Trade as one involving a controlling issue 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. 28 U.S.C. § 1292(d) (1). The United States does not oppose the petition.

Carnival challenged the levying of a port use tax in the Court of International Trade. As part of that challenge, Carnival argued that the entire Harbor Maintenance Tax, a portion of which was found unconstitutional in a different case presently on appeal to this court (United States Shoe Corp. v. United States, No. 96-1210), is unconstitutional because other provisions of the Harbor Maintenance Tax are not severable. The Court of International Trade denied Carnival's motion for summary judgment on the severability argument. The Court of International Trade sua sponte certified the order for permissive appeal.

Because United States Shoe is presently on appeal to this court, we determine that permissive appeal is not warranted in the circumstances of this case.

Accordingly,

IT IS ORDERED THAT:

Carnival's petition for permission to appeal is denied.