                                         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.
