
    Swisher International, Inc., plaintiff v. United States, defendant
    Court No. 95-03-00322
    (Dated March 13, 2001)
   Order For HMT Claims Resolution and Refund Procedure

Restani, Judge:

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. § 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

2. Harbor Maintenance Tax Payment Report

3. HMT Refund Report and Certification

4. Model Judgment

A. Claims Resolution Plan for HMT on Exports

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. § 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 he 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. § 1581(a), to Customs (NOT THE COURT) at

U.S. Customs Service
HMT Refund Claim Forms
PO. Box 68940
Indianapolis, IN 46268

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 Payment Report

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. Customs does not warrant that a refund is owed for all amounts listed. Customs shall transmit each Payment Report to the relevant plaintiff. All 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 Certification described in paragraph A. 3 below.

3. Customs’ HMT Refund Report 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 HMT páyments (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, plús interest pursuant to 28 U.S.C. § 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. Entry of Judgment

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 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. Payment

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. § 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 Report, 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.

b. Claims Submitted to Customs Before the Date of this Order for Which Customs Has Not Issued Either a Payment Report or a Refund Report

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.

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. § 1581(a), not later than 120 days after submission to Customs.

B. Disputed 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 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 adjudicate that issue with respect to calendar quarters for which no HMT refund previously has been obtained. If it is finally determined that pre-sum-mons interest is owing, the defendant will pay such interest to plaintiffs as provided by law in accordance with a schedule set by the court. 
      
       Customs will perform this review based upon the claim and without submission of documentation by plaintiffs.
     