Drusco, Inc. v. United States

Slip Op. 02-143
UNITED STATES COURT OF INTERNATIONAL TRADE
_________________________________
:
DRUSCO, INC., :
:
Plaintiff, :
:
v. : Court No. 95-02-00208
:
UNITED STATES, :
:
Defendant. :
:
________________________________ :
[Disgorgement of investment income claim based on improper collection of Harbor Maintenance
Tax dismissed.]
Dated: December 6, 2002
Peter S. Herrick for plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice (Jeanne E.
Davidson and Paul G. Freeborne) for defendant.
OPINION
RESTANI, Judge:
This matter is before the court on defendant’s USCIT Rule 12(b)(5) motion to dismiss.
Plaintiff entered into a consent judgment which finally settled all of its claims based on the
unconstitutional imposition on its exports of the Harbor Maintenance Taxes (“HMT”) in the
amount of $299,250.46 under 26 U.S.C. § 4461 (1994). Having waived all of its claims based on
COURT NO. 95-02-00208 Page 2
the covered quarterly payments in exchange for a specific refund and having consented to
judgment, it is bound, just as the plaintiffs were in Hohenburg Bros. Co. v. United States, 301 F.
3d 1299 (Fed. Cir. 2002). See Drusco’s consent judgment at ¶ 9.1
Pursuant to the consent judgment, Drusco is to receive interest on the $299,250.46 if
“International Business Machine Corp. v. United States, No. 94-10-00625, finally resolve[s] that
interest is owing on HMT payments.” Drusco’s consent judgment at ¶ 6. To date, that case has
not resulted in a ruling in favor of interest. See International Business Machines Corp. v. United
States, 201 F.3d 1367,1375 (Fed. Cir. 2000) (finding no statutory right to interest), cert. denied
531 U.S. 1183 (2001), and International Business Machines Corp. v. United States, Slip Op. 02-
17, No. 94-10-00625 (Ct. Int’l Trade February 21, 2002) (final order finding no interest owing on
either statutory or constitutional grounds), appeal docketed, No. 02-1356 (Fed. Cir. April 29,
2002). If that case ever results in an award of interest, Drusco will receive interest. There is
nothing left of these HMT claims to be litigated.
1
Paragraph 9 of the consent judgment provides:
Upon entry of judgment, plaintiff releases, waives, and abandons all claims against the
defendant, its officers, agents, and assigns, arising out of all HMT export payments for
the non-severed quarters identified in the attached Harbor Maintenance Tax Payment
Report, including, but not limited to, all claims for costs, attorney fees, expenses,
compensatory damages, and exemplary damages. Defendant releases, waive[s], 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 for the non-severed quarters
identified in the attached Harbor Maintenance Tax Report.
Id. (emphasis added).
COURT NO. 95-02-00208 Page 3
As Drusco may not litigate any claim related to the $299,250.46 in HMT payments it
made, its claim for disgorgement of investment income the United States earned on its HMT
payments may no longer be litigated.
This action shall be dismissed.
____________________
Jane A. Restani
JUDGE
Dated: New York, New York.
This 6th day of December, 2002.