Slip Op. 10-135 UNITED STATES COURT OF INTERNATIONAL TRADE
FORD MOTOR COMPANY, Plaintiff,

v. UNITED STATES, Defendant. Before: Leo M. Gordon, Judge

Court No. 06-00217

OPINION [Defendant’s motion for summary judgment granted; Plaintiff’s cross-motion for summary judgment denied.] Dated: December 16, 2010 Katten Muchin Rosenman, LLP (Bruce J. Casino ); Office of General Counsel, Ford Motor Company (Paulsen K. Vandevert ) for Plaintiff Ford Motor Company. Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, Patricia M. McCarthy , Assistant Director, Commercial Li tigation Branch, Civil Division, U.S. Department of Justice (Tara K. Hogan , Trial Attorney); and Offi ce of Chief Counsel, International Trade Litigation, U.S. Customs and Border Prot ection, U.S. Department of Homeland Security (Richard McManus ), of counsel, for Defendant United States.

Gordon, Judge: Plaintiff, Ford Motor Com pany (“Ford”), challenges a decision of the United States Customs and Border Protection (“Customs”) denying Ford’s protest of Customs’ refusal to refund harbor maintenanc e taxes (“HMT”) Ford allegedly paid. The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2006). 1 The court has already granted partial summary judgment for Defendan t, sustaining Customs’ denial of Ford’s protest for the refund of all eged pre-July 1, 1990 HMT ex port payments. Ford Motor

1 Further citations to Title 28 of the Un ited States Code are to the 2006 edition.Court No. 06-00217 Page 2
Co. v. United States , No. 06-00217 (CIT Jan. 27, 2010) , ECF No. 66 (“Jan. 27, 2010 Order”); see also Chrysler Corp. v. United States , 592 F.3d 1330 (Fed. Cir. 2010) (“Chrysler ”) (sustaining Customs’ denial of a refund request for HMT allegedly paid on exports prior to July 1, 1990). Before the court are cross-motions for summary judgment for Ford’s remaining claims fo r refunds of alleged post-July 1, 1990 HMT export payments. For the reasons set fort h below, the court grants summary judgment for Defendant. Background Familiarity with the HMT, 26 U.S.C. §§ 4461, 4462, and Customs’ HMT refund regulation, 19 C.F.R. § 24.24(e)(4)(iv), is presumed. See generally Chrysler , 592 F.3d 1330, 1332-36 (Fed. Cir. 2010) (explaining hist ory of HMT, HMT court decisions, and Customs’ HMT refund regulatio n). The HMT refund regulatio n carries the force of law and is binding on the court. Id. at 1335-36. It provides t hat for alleged HMT export payments made on or after July 1, 1990, if Customs’ records and the corresponding Harbor Maintenance Tax Payment Report (“HMT Payment Report”) do not reflect either a paper or electronic record of the all eged payments, then the claimant must substantiate its refund request with “supporti ng documentation” to verify proof of payment. 19 C.F.R. § 24.24(e)(4)(iv)(C ). Among the supporting documentation necessary to establish entitlement to a refu nd is a “copy of the Export Vessel Movement Summary Sheet” that “Customs accepted with the payment at t he time it was made.” Id. (emphasis added). In this action Ford has not challenged the validity of the Customs’ HMT refund regulat ion, but instead seeks to prove its compliance withCourt No. 06-00217 Page 3
Customs’ HMT refund r egulation as an evidentiary matter. See Pl.’s Second Cross-Mot. for Summ. J. at 7 (“Ford fully complied with the express conditions of the regulation.”), Ford Motor Co. v. United States , No. 06-00217 (CIT Sep t. 3, 2010), ECF No. 78. Standard of Review The Court of International Trade review s Customs' protest decisions de novo

. 28 U.S.C. § 2640(a)(1). Customs’ protest dec isions enjoy a statut ory presumption of correctness, 28 U.S.C. § 2639(a )(1), which allocates to plai ntiff the burden of proof on contested factual issues aris ing from the protest. See Universal Elecs., Inc. v. United States , 112 F.3d 488, 492 (Fed. Cir. 1997). Applied to this action, where plaintiff is attempting to establish its compliance wit h Customs’ HMT refund regulation as an evidentiary (or factual) matte r, the applicable statutory standards place on Ford the burden of establishing by a preponderance t hat it has complied with Customs’ HMT refund regulation. Rule 56 of this Court, in turn, permits summary judgment when “there is no genuine issue as to any material fact . . . .” USCIT R. 56(c); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Additionally, where a party fails to make a showing sufficient to establish the existenc e of an element essent ial to that party’s case, and on which that party will bear the burden of proof at trial, summary judgment is mandated against that party. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Discussion Ford’s HMT refund request involves all eged payments made after July 1, 1990, but for which there are no pa per or electronic records reflected in Customs’ HMT Payment Report. Under such circumst ances Ford must produce “supportingCourt No. 06-00217 Page 4 documentation” to verify its alleged payments. 19 C.F.R. § 24.24(e)(4)(iv)(C). As noted above, “supporting documentation” includes, among other things, a copy of the Export Vessel Summary Sheet that Customs accepted with the alleged HMT payment at the time it was made. Id. Ford relies upon twenty Export Vessel Summary Sheets as its “supporting documentation” to substantia te its claimed HMT refund. 2 Missing from the record before the court, however, is any ev identiary proffer from Ford that the Export Vessel Summary Sheets were “accepted” by Customs at t he time of Ford’s alleged HMT payments, leaving unfulfilled a regulatory r equirement that Ford had to pr ove that it satisfied by a preponderance of the record evidence. The re cord lacks evidence that Ford’s Export Vessel Summary Sheets were ever mailed, tr ansmitted, or delivered to, and ultimately accepted by, Customs at the time of Fo rd’s alleged HMT payments. Compare Appendix to Def.’s Second Mot. for Summ. J. at 13-43, Ford Motor Co. v. United States , No. 06- 00217 (CIT July 1, 2010), ECF No. 74-3, and A ppendix A to Pl.’s Second Cross-Mot. for

2 Ford’s protest underlying this action cove rs, among other things, the twenty Export Vessel Summary Sheets. Ford , however, only referenced nine of them in its summons and complaint, waiting four and a half years into the litigat ion to raise the other eleven in its cross-motion for partial summary judgm ent. Defendant has moved to dismiss for lack of jurisdiction the court’s considerat ion of these eleven Export Vessel Summary Sheets. It is undisputed, t hough, that Ford’s protest covered the eleven Export Vessel Summary Sheets. The court, therefore, has jurisdiction to review Ford’s HMT refund claims with respect to them. See Pollack Import-Export Co rp. v. United States , 52 F.3d 303, 307-308 (Fed. Cir. 1995) (holding that fa ilure to list in summons each individual entry covered by protest was not jurisdictional ). Alternatively, the court does not reach the question of whether Ford waived its right to pursue them by waiting so long to raise the issue because, as expl ained within the opinion, Fo rd failed make a required evidentiary proffer demonstrating compli ance with the HMT refund regulation for all twenty of Ford’s Export Vessel Summary Sheets.Court No. 06-00217 Page 5 Partial Summ. J., Ford Motor Co. v. United States , No. 06-00217 (CIT Sept. 3, 2010), ECF No. 78 (containing internal Ford docu ments with no evidence of transmission, submission, or filing with Customs) with Appendix K (Stec Declar ation and Attachments) to Pl’s. First Mot. for Pa rtial Summ. J., Ford Motor Co. v. United States , No. 06-00217 (CIT May 5, 2009), ECF No. 53 (containing pre-July 1, 1990 Export Vessel Summary Sheet, Declaration of Ford signatory attesti ng to filing with Custom s) and Joint Status Report, Ford Motor Co. v. United States , No. 06-00217 (CIT April 7, 2010) ECF No. 71 (“The parties have concluded that this is the type of supporti ng documentation that would support a claim but that this particular payment wa s refunded to Ford during a prior administrative refund process.”). Ford has therefore failed to make a showing sufficient to establish the existence of an element essential to Ford’s case, and on which Ford bears the burden of proof at trial, mandating entry of summary judgment against Ford. See Celotex , 477 U.S. 322. Judgment will be entered accordingly.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: December 16, 2010 New York, New York