                                         Slip Op. 02-17

                                              _____

     IN THE UNITED STATES COURT OF INTERNATIONAL TRADE

                                              _____

                   THE HONORABLE JANE A. RESTANI, JUDGE

_____________________________________________
                                                :
INTERNATIONAL BUSINESS MACHINES,                :
CORP.                                           :
                                                :
                  Plaintiff,                    :                     Court No. 94-10-00625
                                                :
                  v.                            :
                                                :
UNITED STATES,                                  :
                                                :
                  Defendant.                    :
________________________________________________:

[No interest awarded on Harbor Maintenance Tax refunds made under 28 U.S.C. § 1581(i)]

      Baker & McKenzie (Susan G. Braden, William D. Outman, II, Kevin M. O’Brien, Teresa A.
Gleason and Michael E. Murphy) for plaintiff.

      Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director, Jeanne E.
Davidson, Deputy Director, Todd M. Hughes, Assistant Director, Jeffrey A. Belkin, Trial Attorney,
Commercial Litigation Branch, Civil Division United States Department of Justice, for defendant.

                                         FINAL ORDER

       This matter was the original test case regarding interest on Harbor Maintenance Tax refunds.

Before the court is plaintiff’s motion of February 4, 2001 to lift stay and enter judgment.

       After the court’s original judgment in favor of plaintiff herein, the Court of Appeals reversed

the part of the judgment finding interest owing under the applicable statute. See IBM v. United
States, 201 F.3d 1367 (Fed.Cir. 2000), rev’g 22 CIT 519 (Ct. Int’l Trade 1998), amended by Errata

dated June 9, 2000 (partial reversal substituted for remand). Plaintiff did not raise its constitutional

arguments (which this court did not reach) in its response brief in the appeal. After mandate issued,

plaintiff attempted to raise such issues here and defendant opposed the attempt. See Pl.’s Mem.

Supp. Summ. J. at 3; Def.’s Resp. at 4-7; Pl.’s Reply at 12-16. The court stayed this case pending

resolution of the constitutional issues in other cases. See Order dated June 4, 2001.

        No party with a judgment for refund of Harbor Maintenance Taxes pursuant to 28

U.S.C.§1581(i) jurisdiction, and whose interest award depended on a favorable resolution of this

action, asked the court to amend such judgment to reference a different test case prior to partial

reversal in this matter, even though constitutional issues had not been placed squarely before the

appellate court. Thus, this remains the test case for all such judgments, and the court finds that this

matter should be completed at the earliest time possible.

        The Court of Appeals did not remand this matter for the court to consider constitutional

issues after plaintiff’s sought reconsideration in the appellate court on such grounds. The appellate

court simply reversed the interest award aspect of the judgment. See IBM, 201 F.3d at 1374-75

(subsequent errata amending conclusion to reverse “[t]he portion of the judgment of the Court of

International Trade ordering interest pursuant to 28 U.S.C. § 2411 as owing on the principal amount

adjudged.”). Therefore, the court will not consider plaintiff’s March, 2001 motion for summary

judgment further. If the appellate court intended this court to consider the issue, the court would

deny any award of interest for the reasons stated in Swisher Int’l, Inc. v. United States, Slip Op. 01-

144 (Ct. Int’l Trade Dec. 11, 2001).




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       If the Court of Appeals reverses Swisher or any other HMT interest case addressing

constitutional claims, it is up to it to recall the mandate in this matter, if possible. This court may

not amend the judgment of the appellate court.

       Accordingly, plaintiff’s motion of February 4, 2002, to lift stay and enter judgment is granted

in part, plaintiff’s motion for summary judgment for award of interest is denied and this matter is

terminated.




                                                 ___________________________
                                                      JANE A. RESTANI
                                                           Judge


DATED:         New York, New York

               This 21st day of February, 2002




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