Swisher Int'l, Inc. v. United States

slip op. 01-E
UNITED STATES COURT OF INTERNATIONAL TRADE
.
SWISHER INTERNATIONAL, INC., ;
.
.
Plaintiff, .
. No. 95-03-00322
.
V.
THE UNITED STATES,
Defendant.
.
ORDER FOR HMT CLAIMS RESOLUTION
AND REFUND PROCEDURE
This Order addresses cases currently pending in this court in “Swisher-type”
cases. A “Swisher-type” case is one in which refund requests were made on
constitutional grounds and denied by Customs, a protest was filed against such
denial, and the administrative prerequisites were otherwise met for this court to
exercise its protest jurisdiction under 28 U.S.C. S 1581(a). Having considered the
parties’ proposal for a claims resolution plan for such suits to recover
unconstitutionally exacted Harbor Maintenance Tax (HMT) under the court’s
protest jurisdiction, the court hereby ORDERS:
TABLE OF CONTENTS
1. Claims Resolution Plan for HMT on Exports
Court No. 95-03-00322 Page 2
2. Harbor Maintenance Tax Payment Report
3. IIMT Refund Report and Certification
4. Model Judgment
A. Claims Resolution Plan for HMT on Exaorts
Overview
The court orders immediate refund of HMT on exports, plus interest
pursuant to 28 U.S.C. § 2644, for payments received-by Customs as to which refund
requests were made on constitutional grounds and denied by Customs, a protest
was filed against such denial, and the administrative prerequisites were otherwise
met for this court to exercise its protest jurisdiction under 28 U.S.C. Q 1581(a). As
provided in the attached judgment form, a subsequent payment will be made for
pre-summons interest if such interest is finally determined to be owed in HMT
refund suits.
1. Claims Procedure
Plaintiffs in Swisher-type cases will make refund claims by submitting their
names, together with the docket numbers of their complaints brought under 28
U.S.C. 5 1581(a), to Customs (NOT THE COURT) at
U.S. Customs Service
HMT Refund Claim Forms
P.O. Box 68940
Indianapolis, IN 46268
Court No. 95-03-00322 Page 3
Such submissions shall be governed by.the terms of this Order whether submitted
to Customs before or after the date of this Order.
2. Customs’ HMT Pavment Renort
Following submission of a claim by a plaintiff, Customs will search its
records for information on HMT export payments for that plaintiff. Customs will
generate a Harbor Maintenance Tax Payment Report (“Payment Report”) (copy
attached), listing all the payments shown in Customs’ records. The Payment Report
will cover all export HMT payments contained in Customs’ database.1 Customs
does not warrant that a refund is owed for all amounts listed. Customs shall
transmit each Payment Report to the relevant plaintiff. AU Payment Reports
generated after the date of this Order shall be transmitted to the relevant plaintiff
at the same time that Customs transmits the associated HMT Refund Report and
Certifkation described in paragraph A.3 below.
3. Customs’ HMT
Refund ReDort and Certification
After Customs has completed the Payment Report for a plaintiff as described
above, Customs will generate and transmit to the relevant plaintiff a HMT Refund
Report and Certification (see attached). This Refund Report shall reflect all export
1 Customs will perform this review based upon the claim and without submission of
documentation by plaintiffs.
Court No. 95-03-00322 Page 4
HMT payments (not previously refunded) for which Customs has reasonably
concluded that there is adequate documentation demonstrating that the plaintiff is
entitled to a refund. Customs shall not conclude that evidence is insufficient solely
on the ground that its records do not include a Quarterly Summary Report (Form
CF349) for the relevant calendar quarter where otherwise adequate documentation
exists.
4. Plaintiffs’ Review and Certification’
A plaintiff will review Customs’ information shown in the Refund Report
form, and if the information is not disputed, will receive refunds for the specified
amounts, plus interest pursuant to 28 U.S.C. 8 2644. If it is satisfied with the
payments listed in the Refund Report, the plaintiff will certify on the same form
that it believes it is entitled to a refund in the amount specified. If the plaintiff
believes that the amount listed for a particular calendar quarter is too high, it shall
correct that amount and the total refund listed and execute the Certification.
5. Entrv of Judmnent
After executing the Certification, plaintiff will fill out and sign a judgment
form (see attached) with the Certification attached and return the form to the
Department of Justice for signing and filing with the court. The judgment should
include a schedule listing all complaints related to the refunds. No separate order
Court No. 95-03-00322 Page 5
of consolidation is required. After receipt of the judgment form from plaintiff,
defendant will have 11 days to file the judgment with the court.
6. Pavment
Not later than 30 days after the court signs the judgment, Customs will
refund the certified amount, care of the plaintiffs attorney. Interest will be paid on
the refund, pursuant to 28 U.S.C. 5 2644, within 60 days after the court signs the
.
judgment.
7. Schedule for Processing Refunds
a. Claims for Which Customs Has
Issued a Payment Report, but no
Refund Reaort, as of the Date of this Order
As of the date of this Order, Customs alreadyhas issued some Payment
Reports to some plaintiffs but has not issued any associated Refund Reports that
could serve as the basis for the Certification and judgment. Following entry of this
Order, Customs’ first priority in processing refunds shall be to complete Refund
Reports for these previously issued Payment Reports. The court expects Customs to
complete all such Refund Reports and transmit them to the relevant plaintiffs
within 30 days after entry of this Order.
Court No. 95-03-00322 Page 6
b. Claims Submitted to Customs Before the Date
of this Order for Which Customs Has Not Issued
Either a Pavment Reaort or a Refund Renort
As of the date of this Order, numerous plaintiffs have submitted claims to
Customs (as described in paragraph A.1 above) for which Customs has not issued
either a Payment Report or a Refund Report. Immediately following issuance of all
Refund Reports described in paragraph A.7.a above, Customs shall begin processing
these other previously submitted claims. Customs shall process all previously
submitted claims before processing any claims submitted after the date of this
Order. Customs shall process such previously submitted claims (by generating both
the Payment Report and the Refund Report) in the order the claims were presented
to Customs.
Customs shall transmit Payment Reports and Refund Reports to the relevant
plaintiffs as they are prepared. The court orders that all Payment Reports and
Refund Reports for claims submitted prior to the date of this Order shall be
completed as soon as possible, but in any event no later than 90 days after entry of
this Order. Customs shall file a status report describing the disposition of such
claims 30 days after entry of this Order, and every 30 days thereafter until all
claims are processed.
Court No. 95-03-00322 Page 7
C. Claims Submitted to
Customs After the Date of this Order
Customs shall process new claims submitted after the date of this Order in
chronological order by date of filing of plaintiffs first complaint under 28 U.S.C.
0 1581(a), not later than 120 days after submission to Customs.
B. Disauted Claims: Judicial Review
Any plaintiff wishing to dispute HMT payment information shown in
Customs’ Refund Report will have an opportunity to do so by submitting
appropriate documentation to Customs supporting its claims for additional
payments. On that basis Customs will attempt to resolve the dispute. Customs will
then return a revised Refund Report to the plaintiff within 60 days after the
documentation is submitted (time subject to adjustment by the court).
Administrative review will resolve many disputes. If the revised Refund Report is
satisfactory to the plaintiff, it will send a signed judgment, with Certification
attached, to the Department of Justice for signature and filing with the court within
11 days of receipt.
If the dispute cannot be resolved administratively, the plaintiff may request
judicial resolution by filing a proposed scheduling order with the court. Plaintiffs
reserve the right to move for a severance of claims with respect to calendar quarters
in dispute on the ground that litigation of disputed facts would unreasonably delay
refund of undisputed amounts. The government reserves the right to oppose such a
Court No. 95-03-00322 Page 8
motion for severance. Procedures established by this plan are not intended to apply
to claims requiring judicial resolution and whatever substantive or procedural law
is normally applicable will apply.
C. Resolution of Other Issues
The court is aware that the question whether pre-summons interest accrues
on HMT refunds in Swisher-type cases has been raised as a prelude to litigation.
The present case will serve as a test case to adjudica’te that issue with respect to
calendar quarters for which no HMT refund previously has been obtained. If it is
finally determined that pre-summons interest is owing, the defendant will pay such
interest to plaintiffs as provided by law in accordance with a schedule set by the
court.
Jane A. Restani
JUDGE
Dated: New York, New York
+A
This -/3 day of BaQ( 2001.
Court No.
HARBOR MAINTENANCE TAX PAYMENT REPORT
A. To be completed by Customs:
1. Name of Plaintif! (including all known variations]:
2. Exporter Identification Number:
3. Quartcrlv Pavments bv Plaintiff .
/ Payment
, Quarter Date PaU Exportsr Name ChW Name
Total Amount Paid: $
4. Refunds, If Anv. Previouslv Mide bv Customs
P8pWlt Amount Date
, Quamr DatePaId Exwrter Noms Refunded Refundexi
Total Amount Refunded : $
Thomas A. Smith
Director
Accounting Services Division
(3)
courtNo.
HMT REFUND REPOR? AND CERTIFICATION
A. To be compieted by Customs:
1. Name of Plaintiff (includino ail known variations):
2. ExDOtTer Identification Number:
3. QuarterlvPavments bv pItit= smarted bv Documntation on File
; Payment Amount
Quarter Date Paid Exmter Name Paid Chwk Name
!’
/ j I
!
I I
,
-.-- I /
I
I I l- ! --
I I
, I
I ! I I
Total Amount Paid: S
4 Total Amount
l Due: $
Thomas A. Smith
Director
Accounting Services Division
B. To be compieted by plaintiff:
I hereby certify on behalf of plaintiff that, to the best of my knowledge and belief,
plaintiff paid the Harbor Maintenance Tax payments listed in number 3 and is entitled to
a refund of those payments as listed in number 4. .
Authorized Representative of Plaintiff
(4)
IN THE UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: THE HONORABLE JANE A. RESTANI, JUDGE
ABC CORP., >
>
Plaintiff, >
>
V. > Court No(s).
>
UNITED STATES, ) . .
Defendant. >
>
JUDGMENT
Pursuant to the procedures established by Order of the Court in Slip Op.
01---J it is hereby agreed by counsel for the parties,
(A) Plaintiff, ; and
(B) Defendant, the United States of America (“United States”) that:
1. The claims and refunds covered by this Judgment are claims in
Court No(s). (schedule attached), relating to payments of the Harbor
Maintenance Tax (HMT) on exports.
2. The court has jurisdiction under 28 U.S.C. Q 1581(a).
3. The amounts set forth on the attached HMT Refund Report and
Certification were HMT payments for exports that plaintiff has certified were made
and that have not previously been refunded.
4. Plaintiff is entitled to refunds of the payments on the attached HMT
Refund Report as provided by law in accordance with the decisions in United States
u. United States Shoe Corp., 1118 S. Ct. 1290 (1998), and Swisher International,
Inc. u. United States, 205 F.3d 1358 (Fed. Cir. 2000).
5. Interest shall be paid to plaintiff as follows:
a. Post-summons interest shall be paid on the refunded amounts
pursuant to 28 U.S.C. Q 2644.
b. Pre-summons interest shall be paid on the refunded amounts as
required by law in accordance with a schedule set by the court should trial or
appellate court proceedings in any of the following cases finally resolve that such
interest is owing on HMT payments:
(1) Swisher International, Inc. v. United States,
Court No. 95-03-00322;
@> International Business Machines Corn. v. United States,
Court No. 94-10-00625;
(3) Hohenberg Bros. Company v. United States,
Court No. 96-09-02074;
(4) Sony Electronics, Inc. v. United States,
Court No. 98-07-02438;
2
(5) United States Shoe Corn. v. United States,
Court No. 94-11-00668;
(6) Arbon Steel and Service Co. v. United States,
Court No. 98-10-02787;
(7) Eastman Chemical Companv v. United States,
Court No. 95-04-00568.
6. All other claims in this action are dismissed.
7. Upon entry of ju.dgment, plaintiff releases, waives, and abandons all
claims against the defendant,, its officers, agents, and-assigns, arising out of all
HMT export payments identified in the attached HMT Refund Report, including,
but not limited to, all claims for costs, attorney fees, expenses, compensatory
damages, and exemplary damages. Defendant releases, waives, and abandons all
claims, other than fraud, that it may have against plaintiff, or its officers, agents, or
employees arising out of all HMT export payments identified in the attached HMT
Refund Report.
8. Undersigned counsel for the United States and for plaintiff represent
that they are authorized by the United States and plaintiff, respectively, to consent
to this judgment form.
9. The refund checks issued pursuant to this judgment covering the
amounts addressed in paragraph 4 above shall be mailed to plaintiff within 30 days,
care of the undersigned attorneys for plaintiff. The refund checks issued pursuant
3
to this judgment covering the amounts addressed in paragraph 5(a) above shall be
mailed to plaintiff within 60 days, care of the undersigned attorneys for plaintiff.
10. Each party will bear its own attorney fees, expenses and costs.
Attorneys for Plaintiff Attorneys for Defendant
Date: Date:
.
SO ORDERED:
JANE A. RESTANI
Judge
4