                                            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




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