Swisher Int'l, Inc. v. United States, No. 95-03 (Ct. Int'l Trade 2001)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 17, 1999.
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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 cases. A Swisher-type constitutional pending in this court in Swisher-type case is one in which refund requests were made on 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 protest jurisdiction, exacted Harbor Maintenance the court hereby ORDERS: TABLE 1. Tax (HMT) under the court s OF CONTENTS Claims Resolution Plan for HMT on Exports Court No. 95-03-00322 Page 2 2. 3. IIMT Refund Report and Certification 4. A. Harbor Maintenance Model Judgment Claims Resolution Tax Payment Report Plan for HMT on Exaorts Overview The court orders immediate pursuant refund of HMT on exports, plus interest to 28 U.S.C. ยง 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 met for this court to exercise its protest jurisdiction prerequisites were otherwise 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 Plaintiffs Procedure in Swisher-type cases will make refund claims by submitting names, together with the docket numbers of their complaints 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 their brought under 28 Court No. 95-03-00322 Such submissions Page 3 shall be governed by.the terms of this Order whether submitted to Customs before or after the date of this Order. 2. Customs Following HMT Pavment Renort submission of a claim by a plaintiff, records for information Customs will search its on HMT export payments for that plaintiff. generate a Harbor Maintenance Customs will 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 transmit that a refund is owed for all amounts listed. each Payment Report to the relevant plaintiff. generated after the date of this Order shall be transmitted at the same time that Customs transmits Certifkation Customs shall AU Payment Reports to the relevant plaintiff the associated HMT Refund Report and described in paragraph A.3 below. 3. Customs HMT Refund ReDort and Certification After Customs has completed the Payment Report for a plaintiff above, Customs will generate and transmit Report and Certification (see attached). to the relevant plaintiff as described a HMT Refund This Refund Report shall reflect all export 1 Customs will perform this review based upon the claim and without documentation by plaintiffs. submission of Court No. 95-03-00322 HMT payments Page 4 (not previously refunded) for which Customs has reasonably concluded that there is adequate documentation entitled to a refund. demonstrating that the plaintiff Customs shall not conclude that evidence is insufficient on the ground that its records do not include a Quarterly Summary is solely Report (Form CF349) for the relevant calendar quarter where otherwise adequate documentation exists. 4. Plaintiffs A plaintiff Review and Certification will review Customs information form, and if the information shown in the Refund Report 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, form (see attached) with the Certification Department plaintiff will fill out and sign a judgment attached and return the form to the of Justice for signing and filing with the court. The judgment include a schedule listing all complaints related to the refunds. should No separate order Page 5 Court No. 95-03-00322 of consolidation is required. After receipt of the judgment form from plaintiff, defendant will have 11 days to file the judgment 6. with the court. Pavment Not later than 30 days after the court signs the judgment, refund the certified amount, care of the plaintiffs attorney. the refund, pursuant to 28 U.S.C. 5 2644, within Interest will be paid on 60 days after the court signs the . judgment. 7. Customs will Schedule a. for Processing Refunds 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 Reports to some plaintiffs issued some Payment but has not issued any associated Refund Reports that could serve as the basis for the Certification Order, Customs first priority and judgment. Following entry of this 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 within 30 days after entry of this Order. them to the relevant plaintiffs Court No. 95-03-00322 b. Page 6 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 submitted claims. Customs shall process all previously 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 plaintiffs as they are prepared. Payment Reports and Refund Reports to the relevant 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 claims are processed. until all Page 7 Court No. 95-03-00322 Claims Submitted to Customs After the Date of this Order C. Customs shall process new claims submitted chronological order by date of filing of plaintiffs after the date of this Order in first complaint under 28 U.S.C. 0 1581(a), not later than 120 days after submission to Customs. B. Disauted Claims: Any plaintiff Judicial Review wishing to dispute HMT payment information Customs Refund Report will have an opportunity shown in 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. then return a revised Refund Report to the plaintiff within 60 days after the documentation is submitted Administrative review will resolve many disputes. If the revised Refund Report is satisfactory to the plaintiff, attached, to the Department (time subject to adjustment Customs will by the court). it will send a signed judgment, with Certification 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 refund of undisputed amounts. of disputed facts would unreasonably delay 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 is normally C. judicial resolution and whatever substantive or procedural law applicable will apply. Resolution of Other Issues The court is aware that the question whether pre-summons on HMT refunds in Swisher-type interest accrues 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. finally determined interest to plaintiffs that pre-summons interest is owing, the defendant will pay such as provided by law in accordance with a schedule set by the court. Jane A. Restani JUDGE Dated: If it is 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 , Quamr DatePaId Amount Refunded Exwrter Noms Total Amount Refunded : $ Thomas A. Smith Director Accounting Services Division Date Refundexi (3) courtNo. HMT REFUND REPOR? AND CERTIFICATION A. To be compieted by Customs: 1. Name (includino of Plaintiff 2. ExDOtTer Identification 3. QuarterlvPavments ; Payment Quarter / Number: bv pItit= Date Paid smarted Exmter bv Documntation Name Amount Paid on File Chwk Name ! I ! I j I , -.-- ail known variations): I / I I I , ! I Total Amount Paid: S 4 Total Amount Due: $ l lI I ! I I I -- 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 BEFORE: STATES COURT OF INTERNATIONAL THE HONORABLE JANE A. RESTANI, ABC CORP., JUDGE > > > > Plaintiff, V. UNITED TRADE > Court No(s). > ) . . > > STATES, Defendant. JUDGMENT Pursuant to the procedures established by Order of the Court in Slip Op. it is hereby agreed by counsel for the parties, 01---J (A) (B) 1. Plaintiff, Defendant, 2. the United The claims and refunds Court No(s). Maintenance ; and (schedule Tax (HMT) States of America covered by this Judgment attached), relating ( United under that: are claims in to payments on exports. The court has jurisdiction States ) 28 U.S.C. Q 1581(a). of the Harbor The amounts 3. Certification were HMT set forth on the attached payments and that have not previously 4. Refund Plaintiff Report for exports that plaintiff Report has certified and were made been refunded. is entitled as provided HMT Refund to refunds of the payments by law in accordance on the attached HMT with the decisions in United States u. United States Shoe Corp., 1118 S. Ct. 1290 (1998), and Swisher International, Inc. u. United 5. States, 205 F.3d 1358 (Fed. Cir. 2000). Interest a. pursuant appellate interest Post-summons interest as follows: shall be paid on the refunded amounts to 28 U.S.C. Q 2644. b. required shall be paid to plaintiff Pre-summons by law in accordance court proceedings is owing on HMT (1) interest shall be paid on the refunded with a schedule amounts set by the court should trial in any of the following cases finally resolve that such payments: Swisher International, Inc. v. United States, Court No. 95-03-00322; @> International Business Machines Corn. v. United Court No. 94-10-00625; (3) Hohenberg Bros. Company v. United States, Court No. 96-09-02074; (4) Sony Electronics, Inc. v. United Court No. 98-07-02438; 2 States, or States, as United (5) States Shoe Corn. v. United States, Court No. 94-11-00668; Arbon Steel and Service (6) Co. v. United States, Court No. 98-10-02787; Eastman (7) 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, claims against the defendant,, HMT export payments but not limited damages, Refund its officers, identified releases, waives, agents, and-assigns, in the attached to, all claims for costs, attorney and exemplary claims, other than fraud, employees plaintiff arising damages. Defendant HMT and abandons all arising out of all Report, including, Refund fees, expenses, compensatory releases, waives, that it may have against out of all HMT export payments plaintiff, identified and abandons or its officers, all agents, or in the attached HMT Report. 8. Undersigned that they are authorized to this judgment 9. amounts counsel for the United by the United States and for plaintiff States and plaintiff, respectively, represent to consent form. The refund addressed checks issued pursuant in paragraph care of the undersigned attorneys to this judgment 4 above shall be mailed to plaintiff for plaintiff. 3 The refund covering within the 30 days, checks issued pursuant to this judgment mailed to plaintiff 10. Attorneys covering the amounts addressed in paragraph 5(a) above shall be within 60 days, care of the undersigned attorneys for plaintiff. Each party will bear its own attorney fees, expenses and costs. for Plaintiff Attorneys Date: Date: . SO ORDERED: JANE A. RESTANI Judge 4 for Defendant
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