Opinion
No. 09-10772 Non-Argument Calendar.
September 1, 2009.
Stephen D. Goodwin, Baker, Donelson, Bearman, Caldwell Berkowitz, Memphis, TN, J. Forrest Hinton, Jr., Baker, Donelson, Bearman, Caldwell Berkowitz, PC, Birmingham, AL, James W. McBride, Baker Donelson, Washington, DC, for Plaintiff-Appellant.
Margaret Johnson McNeill, Glenmore Patrick Powers, II, State of Alabama Department of Revenue, Montgomery, AL, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 08-00655-CV-UWC-S.
Before BLACK, BARKETT, and HILL, Circuit Judges.
CSX Transportation, Inc. (CSXT) appeals the one-page order of the district court dated December 16, 2008, dissolving its preliminary injunction from the imposition of Alabama's sales and use tax on diesel fuel. The district court sua sponte dismissed CSXT's case on the basis that Norfolk Southern Railway Co. v. Alabama Dept. of Rev., 550 F.3d 1306 (11th Cir. 2008) was dispositive.
CSXT asserts that the sales and use tax on diesel fuel discriminates against railroad companies in violation of Section 306(1)(d) of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11501(b)(4) (Section 306). CSXT concedes that the Norfolk Southern panel considered an identical challenge by the Norfolk Southern railroad to the sales and use tax on railroad diesel fuel under Section 306, and ruled in favor of the Alabama revenue department.
CSXT further concedes that the three-judge panel assigned to hear this appeal is bound by the panel's decision in Norfolk Southern We agree. We affirm the judgment of the district court. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
CSXT filed a petition for hearing en banc of this case, pursuant to Rule 35 of the Federal Rules of Appellate Procedure. No judge in regular service in this court requested that the court be polled on hearing en banc; the petition for hearing en banc has been denied.
AFFIRMED.