Slip Op. 02-143



### UNIT ED ST ATES COURT OF INT ERNAT IONAL TRADE

_________________________________ : DR US CO , IN C., : : Plaint iff, : : v. : Court No. 95-02- 00208 : UNITED STA TES, : : De fend ant. : :

________________________________ : [Disgorgement of investment income claim based on improper c ollection of Harbor Maintenance Tax dismissed.] Dated: December 6, 2002 Peter S. Herrick

for plaintiff. Robert D. McCallum, Jr. , Assistant Attorney Gene ral, David M. Cohen , Director, Commercial Litigation Bra nch, Civil Division, United States Department of Justice ( Jeanne E. Davidsonand Paul G. Freeborne ) for de fendant

.

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 onCOURT NO. 95-02-00208 Page 2

1 Parag raph 9 of the conse nt judgme

nt provide s: Upon entry of judg

ment, plaintiff releases, waives, and abandons all claims against the defendant , its officers, agents, and assigns, ar ising out of all HMT export payments for the non-severed quarters identified in the attache d Harbor Maintenance Tax Pay ment Report, in

cluding , but not limi

ted to, al l claims f

or costs, attorne

y f ees, expe nses, compensatory da

mages, and exemplary

damages. Defendant rele ases, waive[s], and abandon s all clai

ms, other than fra ud, that it may

have ag ainst plai

ntiff, or its offic ers, agents, or employ

ees arising out of all HMT export pay ments for the non-severed quarters identifie d in the at

tached H arbor Ma

intenanc e Tax Repor

t. Id. (emphasis added). the cove red quar terly pay ments in exc

hange for a spe cific re fund and

having consente d 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 t

o the cons ent judg

ment, Dru sco is to re ceive in terest on the $299, 250.46 if

“ International Business Mac hine Corp. v. United States , No. 94-10-00625, finally r esolve[s] that interest is owing on HMT pay ments.” Drusco’s consent judgment at ¶ 6. To date, that c ase has not resulted in a ruling in favor of interest. See International Business Mac hines 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 Mac hines Corp. v. United States , Slip Op. 02- 17, No. 94-10-00625 (Ct. Int’l Trade F ebruary 21, 2002) (final order finding no interest owing on either statutory or c onstitutional grounds), appeal docketed , No. 02-1356 (Fed. Cir. April 29, 2002). If that ca se ever

results in an awar d of inter est, Drus co will re ceive in terest. T here is nothing left of these HMT claims to be litigated.COURT NO. 95-02-00208 Page 3

As Drusc o may

not litiga te any claim re lated to the $299,25 0.46 in HMT pay ments it made, its c laim for d

isgorg ement of

investmen

t income the United S tates ea rned on it s 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 Dec ember, 2002.