SLIP OP. 06-57 UNITED STATES COURT OF I NTERNATIONAL

TRADE

____________________________________ : WEST TRAVEL, INC., : : Plaintiff, : Before: Jane A. Res tani, Chief Judge : v. : Court No. 98-09-02786 : UNI TED STATE S, : : Defendant. : ____________________________________: OPINION [Defendant’s motion for summary judgment granted; case dismissed.] Dated: April25, 2006 Lane , P owe ll , S pea rs, Lube rsk y, LLP ( Diane M. Butler) for plaintiff. Peter D. Keisler , Assistant Attorney Gene ral, David M. Cohen , Director, Todd M. Hughes , AssistantDirector, Commercial Litiga tion Branch, Civil Division, United States Depa rt ment of Justice ( Tara K. Hogan

), Richard McManus , Office of the Chief Counsel, United States Bureau of Customs and

Border Protection, of cou

nsel, for defenda nt. Restani, Chief Judg e: This matte r is befo re the c ourt on the parties’ cross-motions for summary judgmen t. Plaintiff

seeks refund of Harbor Maintenanc e Tax (26 U.S.C. § 4461 et seq. (2000)) (“HMT”) pay

ments for various quarters from 1992 thr ough 1996, which were made on account of its Alaska passenger cruises. Plaintiff alleg es that Alaska po rts at which its cruises stopped are statutorily exempt from the tax. T he court finds that the claim plaintiff makes now claim is not properly befor

e the court, and that any

amendment to assert

such a cl aim would b e futile as the statute of limitations has run and the court lacks jurisdiction for other reasons.COURT NO. 98-09-02786 Page 2

1 The tax is unconstitutional as applied to exports, United States v. U.S. Shoe Corp. , 523 U.S. 360, 370 (1998), but those provisions are severable. Princess Cruises , 201 F.3d at 1358. BACKGROUND Plaintiff commenced this action on September 8, 1998, alleging that the H MT was unconstitutional and asserting jurisdiction under 28 U.S.C. § 1581(i) (2000) (residual jurisdiction). Related litig at ion has resolved all constitutional challenges, and the HMT has bee n upheld as constitutional with reg ard to pa ssenge r cruise s. See Princess

Cruises, Inc. v. United States , 201 F.3d 1352, 1360 (Fed. Ci

r. 2000); Carnival Cruise Lines, I nc. v. United

States , 200 F.3d 1361, 1369 (Fed. Cir. 2000). 1 Inresponse to defendant’s motion for summa

ry judgmen t, plaintif f conce des that it s constitutional claim must fail, but alleges for the first time before the c ourt that its cruises to Alaska

were exempt from the tax by virtue of 26 U.S.C. § 4462(b) (exempting Alaska, Hawaii, and possessions from HMT on “cargo” loaded a nd unloaded at their ports) and, therefore, it is owed a refund of $2 8 ,046.05, a

much red

uced cla im from tha

t asserte d in its orig

inal cons titutional

cause of action. Pl aintiff has not file d a motion to amend its c omp laint to include this statut

ory claim. Furthermore, plaintiff did not file for an administrative refund

under 19 C.F.R. § 24.24(e)(4) (2000), obtain an administrative denial, and protest that denial as prerequisites to a suit under 28 U.S.C. § 1581(a) (protest denial jurisdiction). Because this action was stay ed for se veral ye ars while the constitutional litigati on was co mpleted in all respects, the court wil l not look f or proce dural nic eties, butwill consider whether it may or should permit plaintiff to amend its complaint to assert the new cause of action.COURT NO. 98-09-02786 Page 3

2 The court notes that until very recently, it maintained a

website specific to HMT issues by which all persons e asily could stay abreast of legal developments. Of c ourse, as indicated above, legally

sufficient notice existed apart from the website. DISCUSSION In Swisher I

nt’l, Inc. v. United States , 205 F.3d 1358, 1364–65 (Fed. Cir. 2000), the court determined that the 19 C.F.R. § 24.24(e) refund procedure wa s a viable way to challenge the constituti onality

of the HMT so tha

t protest j urisdicti on would lie under 28 U.S.C. § 1581(a). Prior to that time, ther e was no e stablishe d administr ative pr ocedure for cons titutional

challen ges to H MT collecti ons. If there was an y do ubt as to th e viabilit

y of 19 C.F.R. § 24.24(e ) for g eneral HMT assessment

issues, it was resolved

by Swisher . Furthermore, as of early 2000, Swisher

confirmed that Customs Service refund regulations did not provide a time limit for filing refund claims. 205 F.3d at 1368. Thereafter, on July 2, 2001, after a period of notice and comment, the then United States Customs Service promulgated a regulatory time-limit of

one yea r from the date of pay

ment for requesting refunds thereof. See 19 C.F.R. § 24.24(e )(4)(ii ) (2002) ; see also M.G. Maher & Co., Inc. v. United States , 26 CI T 1040, 104 4 (2002) ( upholding

regula tory time limit for refund

claims.) Thu s , for more than a y ear from the date of the Swisher opinion unt

il the reg ulation be came effective, it should ha

ve been clear that administrative relief was available for past HMT re fund claims. 2 Plaintiff argue s t hat it did not wish to split its cause of action, but it should have known from early 2 000, when the Carnival Cruisedecision

issued, th at its cons titutional claim wou

ld notsuccee d and, in f

act, it se ems not to h ave dec ided to as sert a sta tutory claim unti l late 20 05 or 200 6, when it decided to pursue the current claim. See infra next paragraph. Thus, plaintiff h a dCOURT NO. 98-09-02786 Page 4

3 Apart from the challenges based on the effects on the HMT statute, as a whole, of the successful challenge under the E xport Clause, some parties challenged the HMT based on the Port Preference and Uniformity Clauses of the Constitution because of the very exemptions now relied on by plaintiff. Those challenges failed. See , e.g. , Thomson Multimedia Inc. v. United States , 340 F.3d 1355, 1363–66 (Fed. Cir. 2003).

4 See U.S. Shoe Corp. v. United States , Slip Op. 05-89, 2005 WL 1767959 (CIT Jul. 27, 2005). The court had over the y ears lifted the stay

at various times to allow action in individual suits. nothing to split in 2000-2001, when it should have acted, as numerous parties did. 3

In 2005, after the cour

t was informed by the G overnment that the court established administrative claims procedures arising out of U.S. Shoe , 523 U.S. 360, had been completed and that collateral litigation relating to interest on export based claims had bee n resolved, the court determined

to lift its general stay

originally c overing thousands of cases a nd to dismiss

the remaining HMT actions, save for cause shown. 4 Plaintiff’s suit was notdismissed, rather, it was permitted to litigate its claim b ased on it s stateme nts that it had constitutional claims remaining and a claim under Princess Cruises, Inc. v. United States , 397 F.3d 1358 (Fed. Cir. 2005) (layove r claims). See West Travel, Inc. v. United States , No. 98-09-02786 (CIT Oct. 13, 2005) ( order granting motion to stay dismissal). It asserts neither claim now. ( See Pl.’s Mot. for Summ. J.)

Giventhese de

velopme nt s, th e c ou rt se es no ge nu in e e xc us e f or pl ai nt if

f’ s d el ay. Nonethe less, assuming arguendo that all of the leg al uncertainty sur rounding the HMT a

nd th e general stay do provide a good

reason for seeking

an amend

ment at thi s time, the

court wil l addres s whether such an amendment would be futile.

First, it is clear that

a suit unde

r 28 U.S.C. § 1581(i) must be brought within two ye ars

o f claim accrual. See 28 U.S.C. § 2636(i)(2000). None of the pay ments which plai ntiff seeks t oCOURT NO. 98-09-02786 Page 5

5 A companion case, West Travel, Inc. v. United States , Court No. 98-09-02785, decided simultaneously herewith, addr esses claims that are not time-barred for purpose s of 28 U.S.C. § 1581(i).

6 Date of protest denial controls the statute of limitations under 28 U.S.C. § 1581(a). See 28 U.S.C. § 2636(a). recover were ma de after A ugust 8, 1996. (Def.’s App. to Mot. for Summ. J. 1–2.) This suit was filed more than two yea

rs later, in Septemb er 1998. Thus, 28 U .S.C. § 1581(i) jurisdiction is not an available avenue for recove ry of the pa

yments at issue. 5 Second, plaintiff cannot

assert a claim und

er 28 U.S. C. § 1581(a

) becau se it

has not obtained a denial of a

protest. 6 Such a jurisdictional prerequisite begins with a refund request under 19 C.F.R. 24. 24(e). Pl aintiff has not alle ged tha t it has eve

r begu n the proc ess that le ads to 28 U .S.C. § 1581(a) jurisdiction. Neither party ha s opined as to whethe

r such an administr

ative re fund cla

im is viable a

t this date, and it wou

ld appea r to be too

late unde r the cur rent re gulation. If

, for some

rea s on, it is viable, plaintiff’s claim under 28 U.S.C. § 1581(a) is not ripe. In a ny case, no amendment to the complaint based on this alternative jurisdictional basis is possible at this time.

Acc or di ng ly, plaintiff may not amend its complaint to alleg e a statutory c l aim and thi s action under 28 U.S.C. § 1581(i) will be dismissed.

/s/ Jane A. Re stani Jane A. Res tani Chief Judge Dated: New York, New York. This 25th day of April, 2006.