# Petition for Writ of Certiorari — United States Shoe Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1169%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 538 U.S. 1056 ## Text He Rereme Court, U.S. (1) FILE® 0212 21 FEB 1 9 2003 N Ogden: OF ae ei PK IN THE Supreme Court of the United States UNITED STATES SHOE CoRP., Petitioner, V. UNITED STATES OF AMERICA. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit PETITION FOR WRIT OF CERTIORARI Thomas C. Goldstein Amy Howe Laurence H. Tribe (Counsel of Record) John Bronsteen Goldstein & Howe, P.C. 4607 Asbury PI., NW Washington, DC 20016 Harvey A. Isaacs Robert T. Stack Tompkins & Davidson, LLP 1515 Broadway — 43rd Floor New York, NY 10036 February 19, 2003 WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001 Charles Fried 1575 Massachusetts Ave. Cambridge, MA 02138 (617) 495-4621 James S. O'Kelly Alan Goggins Barnes, Richardson & Colburn 475 Park Avenue South New York, NY 10016 i QUESTIONS PRESENTED i. Did Congress by statute waive the government’s im- munity from the more than $700 million in interest owed to more than 7500 exporters on refunds of the Harbor Mainte- nance Tax, which this Court previously held in this case vio- lates the Constitution’s Export Clause? 2. Is such a waiver unnecessary either because the gov- ernment is required to pay interest under the Export Clause or because it is at least required to return the more than $70 mil- lion in profits it actually earned by investing the HMT pay- ments, as this Court held in Henkels v. Sutherland, 271 U.S. 298 (1926)? il PARTIES TO THE PROCEEDINGS BELOW The caption identifies the parties to the proceedings be- low. RULE 29.6 STATEMENT Petitioner United States Shoe Corp. is a wholly owned subsidiary of Luxottica U.S. Holding Corp., which in turn is a wholly owned subsidiary of Luxottica Group S.p.A., Italy, a publicly held corporation. On May 23, 1995, the assets of the Footwear Division of United States Shoe Corp. were acquired by Nine West Corporation, a publicly held corporation that was subsequently acquired by Jones Apparel Group, Inc., a publicly held corporation. ili TABLE OF CONTENTS Pages QUESTIONS PRESENTED ...............ccccccccssssccssssssssccccseeeee. i PARTIES TO THE PROCEEDINGS BELOW. ..........0..00.0--. il RPE PAD OPA PRU IIMIIUT 6, cssusessccsosescossseesvsasesvorenecerescnseaees ii RE Ie os ses cock cts vaceavscsacsc\vasvécvasvecasseasoiseens ill BORE PART CBP TUES os oscssecesescssocsssesonsssensesvesocsesessess IV PETITION FOR A WRIT OF CERTIORARI .......ccccccecceceeces l CPP RRP UREL IW ccacccccessosscssvenvessnesvens loncihietuabilacenielatiadas l ERTS SS COU na l RELEVANT CONSTITUTIONAL, STATUTORY, AND FRPP PAT RPL EMPIRE BIRO VESEOIING o.ncccsccesuncessesonssensecsccsscsenecesees l STATEMENT OF THE CASE ........c.cscsecccssccssssscesscsesseasosess l REASONS FOR GRANTING THE WRIT .........cccccccccceecees 10 I. Certiorari Should Be Granted In Light Of The Importance Of The Federal Circuit’s Decision............... 11 If. Certiorari Should Be Granted Because The Federal Circuit Failed To Give Effect To Congress’s Intent To Waive The Government’s Immunity From di chilek Cass aicesdccadidaisnasienkhaedshasiouss deka pdheedeniains sve 13 III. Certiorari Should Be Granted To Determine Whether A Waiver Of The Government’s Immunity From io ssn od dareves meaecisanacoaiihesamnekies 20 NS cscs cyassdeteat dude Sincicsnlechigacin 27 iV TABLE OF AUTHORITIES Cases Ashwander v. Ternessee Valley Authority, GPF Ue CRE Ul PR iii iatictimminnens hvechekebebmedenenith 20 Cyprus Amax Coal Co. v. United States, 205 F.3d 1369 (2000), cert. denied, 532 U.S. 1065 aE cs caichaehchbhcaaibienniinbsaigscatelinbedsahhialadilita lata 23 Daniels v. Williams, EE A SOE Ce cnecokeiuihabiasicbieniantisiedthdacidbabanniinicaaniin 26 E. W. Scripps Co. v. United States, 2002 U.S. Dist. LEXIS 20283 (S.D. Ohio Sept. 16, MD sacitcanintndaibcuhiiasnscibiciin ntekacmmnciatpasteiasedatinlaabis 24 Eastern Enterprises v. Apfel, Fe Fcc MA EO Pe esnnninccccchadasisidsiiiemncctebecbelbanubilinted ae English Evangelical Lutheran Church v. County of Los Angeles, ES PR AE OR isiininietincinedabiagediiniinniiniigaaamaniaadan 26 Ex parte Siebold, OE ea hE 8 Ce vicki aniciticininsainennanindabeiinapiniglies 26 Fairbank v. United States, SR SEB er aE Miinetcsesseiecsinciviananaciimenianan 3, 6, 22 Fuentes v. Shevin, aE Te Br COG ia diethinicnichieetinneiiniailaadiiin 26 Henkels v. Sutherland, FC Ge ee itinteictncninvniatciibaaaaeaes 4,11, 23 Humane Society of United States v. Clinton, Be Ee Ee ee I R ceciictiinintevinstnsnisasinnneanicnaaion 17 Ikelionwu v. United States, ee EE Aik stnsinsioninnciienasiinicsigninntgiel 24 Larson v. United States, BEDE IO GES (CAL ZOD1) .ocsesccseecesisescichetsdeisorpecedstccedss, 24 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1880) .0...cccceccccceeceee. iittencinenoael Reynoldsville Casket Co. v. Hyde, POF Sy PO ER vicinsticticerseithadeeis eit 25 Swisher International v. United States, 205 F.3d 1358 (CAFC), cert. denied, 531 U.S. 1036 GN Mivieiielehineichttihteaatasieisad ceata gel ese Mere 7 United States v. $7,990.00, BPD Fe OED COAG BG aa seniescsvictsecescvsescsereeesoces. 24 United States v. $30,006.25, 236 F.3d 610 (CA10 2000).............ccccccccscccoszesecseceeees... 24 United States v. $40,000, 1998 U.S. Dist. LEXIS 14649 (D.P.R. ig. | SG ee 24 United States v. $133,735.30, Be Be FA Ce Foss cexsseceinsscdsraieereassounecc 24 United States v. $277,000, OF FW ROPE CLAD FIGS) vovcciccvnsseessessereeccessesccsecs... 9, 24 United States v. $515,060.42, Fe Coe OE CED WON i ceiiitite hicitibnti cn es 9, 24 United States v. American Bar Endowment, BE Us TOR Ci satleitctbecthittiicaeitasinsbcsa ne 5a United States v. Goodyear Tire & Rubber Co., Fe As Be Ce iiissiniscrrcrnitarcateicdeiscree 12 United States v. Hill, PE BF ai EM sictuchininirrincopsiapiseiittpdeaiasansnecuc ce 12 United States v. IBM Corp., FE Cie Oe Ui i iitartisiinnstniskecdecrbicbect acs: 7, 21, 22 United States v. United States Shoe Corp., FE GD, PRRUUGGT) icrcvevnsicrrnninnniicssnssiirinricasiateisnted, passim United States v. United States Shoe Corp., REP Cette POP ON OD ivssisctecvinconinsdacesieciesincescees 1, 10, 16, 25 errant. _ vi Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 44D OB. 15S CD tiiscenctsticrttensainenicltiomminnan 25 Constitutional Provisions, Statutes, and Regulations U7... COREE. GURU, "Whivessecinsunssvansesonaniaietiaialantinnsinl passim 3. Comat. ar. Ei GE: oe saisscbeciesbecdcnceuseniniseiiauntns passim 19 U.S.C. SFP The first three Federal Register notices cited only Section 1505. The final version included an unexplained further citation to 19 U.S.C. 1520, but that statute does not support the Federal Cir- cuit’s decision. Because Congress directed that the HMT be treated as a customs duty, a refund could be available under Section 1520 only if “it is ascertained on liquidation or reliquidation of an entry or reconciliation that more money has been deposited or paid as duties than was required by law to be so deposited or paid.” /d. § 1520(a)(1) (emphasis added). Thus, to the extent the government relies on Section 1520 as authority for issuing refunds, it must con- cede that the provisions of the customs laws apply to the HMT notwithstanding that they contemplate “liquidation or reliquidation” and the existence of “an entry or reconciliation.” 16 had heeded that command, the court of appeals would have found that exporters have a right to interest. The terms that the Federal Circuit found critical in Section 1505 — “im- porter,” “liquidation,” “entry,” and “reconciliation” — appear throughout the administration and enforcement provisions of the customs laws and regulations because they govern the payment of customs duties. See 19 U.S.C. 1500; 19 C.F.R. 19.12 (providing for reconciliations); id. § 141.0a(a) (defining entry); id. § 159.1 (defining liquidation). That is precisely the reasoning underlying this Court’s ju- risdictional holding in U.S. Shoe J. This Court in U.S. Shoe I affirmed the Federal Circuit’s determination that jurisdiction is proper under 28 U.S.C. 1581(i), which grants the CIT “ex- clusive jurisdiction of any civil action conimenced against the United States * * * that arises out of any law of the United States providing for * * * revenue from imports” or other du- ties or restrictions on “the importation of merchandise.” /d. § 1581(i)(1)-(3). In reaching that conclusion, this Court found that Section 4462(f)(2) made Section 1581(i)’s refer- ence only to “imports” immaterial: True, § 1581(i) does not use the word “exports.” But that is hardly surprising in view of the Export Clause, which confines customs duties to imports. Revenue from imports and revenue from customs duties are thus synonymous in this setting. In short, as the CIT correctly concluded and the Federal Circuit correctly affirmed, “Congress [in § 4462(f)(2)] directed [that] the [HMT] be treated as a cus- toms duty for purposes of jurisdiction. Such duties, by their very nature, provide for revenue from imports, and are encompassed within [§] 1581(i)(1).” Pet. App. 106a (quoting Pet. App. 46a). The very purpose of Section 4462(f) is thus to ensure that the substantive and jurisdictional provisions of the customs laws govern the HMT notwithstanding that the tax applies to exporters, not merely “importers,” and in that respect does not A is it Be NU Et Na wih a EE, 17 call for an “entry,” a “liquidation,” or a “reconciliation.” Congress intended that the courts ignore those differences in applying the customs laws so that it could avoid revising those statutes wholesale. It is therefore clear that Section 1505(b) uses the words “on a liquidation or reliquidation” simply to refer to the ordi- nary method of calculating a refund, with interest, of duties on imports — the duties to which the customs laws usually ap- ply. Pet. App. 130a. There is no reason to believe Congress intended to permit Customs to circumvent its duty to pay a refund and interest by employing a particular method to col- lect the HMT or determine the amount owed to the exporter. This case is a perfect example: no technical mechanism need (or logically would) be used to determine ‘the amount owed because this Court has held that every single cent exacted pursuant to the HMT is unconstitutional as applied to exports. To the extent the timing provision of Section 1505(c) is inap- plicable, that is no obstacle to an award of otherwise-owing interest, which obviously runs from the date the government received the principal.° Indeed, the Customs Service itself acknowledged — out- side the self-interested context of this litigation — that Section 4462 unmistakably commanded that interest be available un- _ der Section 1505. After Congress adopted Section 1505 in its current form, Customs issued a draft notice of proposed rule- making setting forth its views on how the statute applied to other customs laws. See Pet. 140a-43a (excerpting relevant ° At the very least, Customs was compelled under 26 U.S.C. 4462(f)(1) to utilize the standard tools of “entries” and “liquida- tions” in calculating and collecting the HMT because Congress di- rected Customs to administer the HMT as if it “were a customs duty.” See 19 U.S.C. 1500. Customs cannot use its own failure to follow that clear command to frustrate Congress’s intent to award interest. 18 provisions).’ Customs acknowledged that, in light of Section 4462, “section [1505] interest principles [apply] * * * even where the final amount of the required fee payment is not fi- nally determined in connection with a liquidation or reliqui- dation.” Id. 141a (emphasis added). Customs thus acknowl- edged that it was “required to apply the rules and principles of section [1505]” to the HMT because it “believe[d] that sec- tion [1505] is one of the customs laws which by Congres- sional mandate applies to the fees and taxes Customs collects pursuant to [the HMT].” Jd. (emphases added). Customs specified that this conclusion included the application of Sec- tion 1505’s “interest provisions to * * * the port use (harbor maintenance) fee applicable * * * to the export * * * of mer- chandise,” such that “interest accrues on overpayments of all fees from the date the fee was deposited with Customs.” /d. 141a-142a. 2. Congress separately waived the government’s immu- nity from interest in a provision of the Judicial Code, 28 U.S.C. 2411. That statute provides: “In any judgment of any court rendered * * * for any overpayment in respect of any internal-revenue tax, interest shall be allowed * * *.” The Federal Circuit did not doubt that “the structure and the content of the HMT point toward it being an internal revenue tax, and thus entitled on refund to the interest award provided under § 2411.” Pet. App. 123a. The court of ap- peals thus recognized that the Harbor Maintenance Jax is ’ During the appellate proceedings in U.S. Shoe I, Customs withheld action on the notice. After this Court’s decision invalidat- ing the HMT, Customs issued a new proposed rulemaking but omitted its prior acknowledgment of a right to interest. 64 Fed. Reg. 56,433 (Oct. 20, 1999). Petitioner is including the original draft notice in the appendix because Customs appears to have de- leted the document from its electronic bulletin board during the course of the appellate litigation over the right to interest on HMT refunds. 19 codified in the Internal Revenue Code and “‘is clearly derived from internal sources — the U.S. exporter.” Jd. The Federal Circuit nonetheless held that interest is not available in light of 26 U.S.C. 4462(f)(3). That statute provides that the HMT “shall not be treated as a tax for purposes of subtitle F [of the Internal Revenue Code] or any other provision of law relating to the administration and enforcement of internal revenue taxes.” The court of appeals acknowledged that Section 2411’s provision for the award of interest is codified in the Judicial Code, not the Internal Revenue Code, but held that Section 2411 “relates to the administration and enforcement” of taxes, which it defined to mean “enforcement of the tax laws, including the obtaining and enforcement of judgments against both taxpayers and the United States.” Pet. App. 125a. The court of appeals erred because it failed to recognize the limited role of Section 2411. That statute is not a direc- tive to the Internal Revenue Service to award refunds, nor does it implement any provision of law contained in the Inter- nal Revenue Code. Rather, it is a separate authorization in the Judicial Code for courts to include interest on refunds that they award to taxpayers. The statute merely provides that “{iJn any judgment of any court rendered * * * for any over- payment in respect of any internal-revenue tax, interest shall be allowed * * *.” 28 U.S.C. 2411. Section 2411 is thus not a “provision of law relating to the administration and en- forcement of internal revenue taxes” (26 U.S.C. 4462(f)(3)). That conclusion is apparent from the contrast between Section 2411 and those statutes that direct agencies to award refunds with interest. Thus, 26 U.S.C. 6611 governs the IRS directly and provides: “Interest shall be allowed and paid upon any overpayment in respect of any internal revenue tax ** *” In add’-ion, 19 U.S.C. 1505, discussed supra, directs the Customs Service specifically to award refunds and interest in certain circumstances. Both 26 U.S.C. 6611 and 19 U.S.C. 1505 are thus properly understood to “relate to the admini- 20 stration and enforcement” of, respectively, the tax and cus- toms laws. For the foregoing reasons, Sections 1505 and 2411 confer upon exporters a right to interest. Congress clearly intended that interest be paid on both illegally collected taxes and ille- gally assessed customs duties. As a drafting short-cut, Con- gress shunted certain questions regarding its Harbor Mainte- nance Tax to provisions of the customs laws. Those provi- sions refer only to import duties, not export duties, because the latter violate the Constitution. From this the government and the court below conclude that Congress, which repeatedly indicated its wish that interest be paid on illegal exactions, has not succeeded in ordering payment of interest on illegally exacted export duties by any route. This Court rejected such a Catch-22 interpretation in respect to the CIT’s jurisdiction in U.S. Shoe I and should reject it here as well. But even if the Court were to conclude that Congress did not waive the government’s immunity and thus inadvertently permitted the utterly unjust outcome reached below, certiorari would be warranted to decide a second question: is the “no- interest” presumption even applicable here? As petitioner now shows, the answer to that question is “no,” and this Court should furthermore recognize the inapplicability of sovereign immunity to the award of interest in such cases so as to avoid the substantial constitutional questions that would otherwise arise. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Ill. Certiorari Should Be Granted To Determine Whether A Waiver Of The Government’s Immunity From In- terest Is Required. 1. The Federal Circuit rejected the argument that the Ex- port Clause itself requires the payment of interest as part of the compensation for the government’s flat violation of the Export Clause. In particular, the court of appeals found dis- positive the fact that, unlike the Export Clause, the Takings Clause includes “the restorative clause, ‘without just compen- ee 21 sation.” Pet. App. lla. That decision conflicts with the text of the Export Clause and with this Court’s precedents. As this Court has concluded on the basis of the text and history, “the original impetus may have had a narrow focus, [but] the remedial provision that ultimately became the Export Clause does not.” United States v. IBM Corp., 517 U.S. 843, 859-60 (1996) (emphases added). The Constitution’s Export Clause is categorical. Its “sim- ple, direct, unqualified prohibition on any taxes or duties,” this Court previously explained in this case, “distinguishes it from other constitutional limitations on governmental taxing authority.” Pet. App. 108a. Although the framers in other provisions mandated, for example, “just compensation” (U.S. CONST. amend. V) and “due process” (id.), in the Export Clause they clearly and succinctly commanded: “No Tax or Duty shall be laid on articles exported from any State.” U.S. CONST. art. I, § 9, cl. 5. The “proponents of the Clause fully intended the breadth of scope that is evident in the language.” IBM, 517 U.S. at 859-60. The framers could not have in- tended the categorical prohibition of the Constitution’s text against any export tax to have Jess force and effect than the Fifth Amendment’s more permissive provision allowing the taking of private property so long as just compensation is provided. 999 The categorical text of the Export Clause reflects the fram- ers’ expansive purposes. Although some favored crafting a provision that more narrowly woula prevent the government from using exports as a source of general tax revenues, a broader conception of the Clause as a protection of exports prevailed. More than a century ago, this Court explained: [T]he purpose of the restriction is that exportation, all ex- portation, shall be free from national burden. This intent, although obvious from the language of the clause itself, is reinforced by the fact that in the constitutional convention Mr. Clymer moved to insert after the word “duty” the words “for the purpose of revenue” but the motion was en 22 voted down. So it is clear that the framers of the Constitu- tion intended not merely that exports should not be made a source of revenue to the National Government, but that the | National Government should put nothing in the way of | burden upon such exports. Fairbank v. United States, 181 U.S. 283, 292-93 (1901). As this Court previously concluded in this case, the framers re- sponded to the “concern[] that Northern States would tax ex- ports to the disadvantage of Southern States by completely | denying to Congress the power to tax exports at all.” Pet. App. 108a (quoting JBM, supra 517 U.S. at 861) (emphasis added). The Federal Circuit’s decision runs contrary to both of these purposes of the Export Clause recognized in Fairbank. The government’s retention of the proceeds earned while the funds paid by exporters have been held in the Harbor Mainte- nance Trust Fund manifestly constitutes a prohibited “source of revenue to the National Government.” Fairbank, 181 U.S. at 292. Further, the government’s failure either to pay interest as the lost time-value of the exporters’ money or to disgorge the proceeds actually earned would be a profound “burden upon such exports.” /d. at 293. The Export Clause prohibits restraining exports through even $1 in taxation. It cannot se- riously be imagined that the Clause permits exporters to suf- fer the burden of effectively losing the value of $700 million as a result of an admittedly unconstitutional tax on exports. Finally, the Federal Circuit’s textual reasoning produces absurd results. The court took an “expressio unius”-like ap- proach to the fact that only the Takings Clause has a “just compensation” requirement. That reasoning attributes to the framers the intent that the Constitution’s other clauses prohib- iting the government from seizing funds in certain circum- stances — including not only the Export Clause but also the Import/Export Clause — provide the victims of the govern- ment’s unconstitutional acts either no refund at all or, at most, compensation that is less than “just.” That is absurd, and EE 23 even the Federal Circuit has previously held that “[t]he neces- sary implication of the Export Clause’s unqualified proscrip- tion is that the remedy for its violation entails a return of money unlawfully exacted. * * * [A]bsent a prompt restora- tion of [such] money * * *, the Export Clause would be more hollow than real because in the event that Congress imposed export taxes, equitable relief alone could not ameliorate the harm.” Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373-74 (2000), cert. denied, 532 U.S. 1065 (2001). 2. At the very least, no express waiver of the govern- ment’s immunity is needed when the government is required to refund significant profits that it has actually earned on unlawful exactions. See Henkels v. Sutherland, 271 U.S. 298 (1926). In Henkels, the federal government unlawfully seized the petitioner’s securities pursuant to the Trading with the Enemy Act, sold the securities, and deposited the proceeds into an interest-bearing account where they were commingled with other monies. This Court held the petitioner was entitled not only to a refund but also to the government’s earnings from investing the sale of his securities. /d. at 301. The Court recognized the basic rule that “{t]he Govern- ment cannot be sued without its consent; and, accordingly, it cannot be sued for interest unless it consents to be liable therefor.” 271 U.S. at 301. But the Court explained that “the claim here is not for interest to be paid by the United States in the sense of the [no-interest] rule. It is for income, derived from an investment of Henkels’ money in obligations of the United States, which income has been actually received by the Treasury and is in its possession * * *.” Jd The govern- ment “cannot confiscate the actual increment of property be- longing to a citizen * * * any more than it can confiscate the property or its proceeds, without coming into conflict with the Constitution.” Jd. The Sixth and Ninth Circuits have reached the same con- clusion and would require the government to disgorge the proceeds it earns. Those courts would reason that “the inter- EE EE 24 est earned on the money in an interest-bearing account would become part of, and would be substituted for (along with the original amount) the res.” United States v. $277,000, 69 F.3d 1491, 1496 (CA9 1995). On this question, “the circuits are split” (United States v. $30,006.25, 236 F.2d 610, 613 (CAI0 2000)) four-to-two. Accord U.S. C.A. Br. 46 (“the courts are split”).® Although the appellate decisions giving rise to the conflict arose from unlawful forfeitures — and Congress has recently provided for the award of interest in that specific cir- cumstance (28 U.S.C. 2465(b)(1)(C)) — the conflict is appli- cable generally to all unlawful exactions of money. E£.g., E. W. Scripps Co. v. United States, 2002 U.S. Dist. LEXIS 20283 (S.D. Ohio Sept. 16, 2002) (holding that right to inter- est on refund of tax overpayment existed under Sixth and Ninth Circuits’ view that no waiver of immunity is required). Although no challenge to the HMT can actually arise in the Sixth or Ninth Circuits, it is a testament to the seriousness of the issue that two courts of appeals would hold that petitioner has a right to the proceeds earned by the government on peti- tioner’s HMT payments. This case presents the strongest possible circumstance for holding that no waiver of the government’s sovereign immu- nity from interest is required where the government has real-, ized actual proceeds, because a contrary ruling (such as the holding of the Federal Circuit in this case) would raise serious constitutional questions. Precedents under three constitu- * The Sixth and Ninth Circuits hold that no waiver is required. United States v. $515,060.42, 152 F.3d 491, 504-06 (CA6 1998); United States v. $277,000, 69 F.3d 1491 (CA9 1995); see also United States v. $133,735.30, 139 F.3d 729, 731-32 (CA9 1998); United States v. $40,000, 1998 U.S. Dist. LEXIS 14649 (D.P.R. Sept. 1, 1998). The First, Second, Eighth, and Tenth Circuits dis- agree. Larson v. United States, 274 F.3d 643 (CAI 2001); $30,006.25, 236 F.3d at 614-15; United States v. $7,990, 170 F.3d 843, 845-46 (CA8 1999); Jkelionwu v. United States, 150 F.3d 233, 238-39 (CA2 1998). Ee 25 tional provisions — the Export, Takings, and Due Process Clauses — establish that exporters have a constitutional right to the proceeds earned by the government on the HMT funds. In addition to the authorities cited above under the Export Clause, petitioner presents a substantial argument that the government is required by the Takings and Due Process Clauses to disgorge the proceeds it actually earned on the HMT. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980); Eastern Enterprises v. Apfel, 524 U.S. 498, 540 (1998) (Kennedy, J., concurring) (distinguishing challenge to general tax from claimed right to “accrued inter- est”). The Federal Circuit rejected those arguments on the ground that “[t]he tax revenue here was not held by the gov- ernment as property of U.S. Shoe. It became the property of the Treasury upon payment, and was appropriated to the Har- bor Maintenance Trust Fund along with” HMT payments by parties other than exporters. Pet. App. 8a. Furthermore, the HMT “served the rational purpose of maintaining the ports”: “Congress mandated that fees collected from the HMT be used only for commercial navigation projects.’” Jd. 9a (quot- ing Mayer, C.J., dissenting from Federal Circuit’s holding in U.S. Shoe I that HMT violated the Export Clause). The Federal Circuit’s reasoning is open to serious ques- tion and merits further review. As a constitutional matter, the court of appeals certainly erred in relying on the fact (Pet. App. 8a) that the government “held” the HMT payments as its Own rather than as the property of the exporters. Although the HMT payments were in the government’s hands, and the government refused to acknowledge their rightful ownership, the money plainly was the “property” of the exporters all along. That is so because the government’s action was un- constitutional, and “what a court does with regard to an un- constitutional law is simply to ignore it. It decides the case ‘disregarding the [. unconstitutional] law,’ because a law re- pugnant to the Constitution ‘is void, and is as no law.’ Rey- noldsville Casket Co. v. Hyde, 514 U.S. 749, 760 (1995) 26 (Scalia, J., concurring) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1880); Ex parte Siebold, 100 U.S. 371, 376 (1880)) (emphases and alteration in original). Cf. First English Evangelical Lutheran Church v. County of Los Ange- les, 482 U.S. 304, 320 (1987) (rejecting the argument that “no compensable regulatory taking may occur until a challenged ordinance has ultimately been held invalid”). The Federal Circuit next relied on the fact that, although the Harbor Maintenance Trust Fund by statute contains only HMT payments and the proceeds earned by the government on those payments (see 26 U.S.C. 9505, 9602(b)), the HMT was not paid exclusively by exporters. Pet. App. 8a. This Court’s jurisprudence, however, has never attributed such controlling significance to the concept of a “discrete fund,” which on the Federal Circuit’s view is an invitation to the government to circumvent the Fifth Amendment by submerg- ing all exacted funds within some larger account. Finally, it is no answer to petitioner’s argument that Con- gress had a “rational purpose of maintaining the ports” (Pet. App. 9a) when it enacted the HMT. This is not a case in which government action is challenged on the single ground of “irrationality,” as would be the case if petitioner argued that the HMT bore no rational relationship to preservation of the port system. Petitioner instead argues that the Constitu- tion does not permit the government to profit from its utterly unconstitutional conduct. When the government has em- ployed unconstitutional means, it is no defense that its pur- pose was entirely legitimate. The Fifth Amendment thus does not permit the government to “take” private property without just compensation for a “rational” reason. Nor 1s the protec- tion against “arbitrary” government action provided by the Due Process Clause (e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986); Fuentes v. Shevin, 407 U.S. 67, 82 (1972)) - which is surely implicated when the government seeks to profit enormously from its own unlawful conduct to the det- riment of individuals forced to pay an unconstitutionai tax — 27 vitiated by the fact that the government had a “rational” rea- son for wanting to violate the Constitution. Put another way, the Federal Circuit addressed the wrong question. The pertinent question for purposes of the Takings and Due Process Clauses is not whether the tax itself was ar- bitrary, but instead, once it was determined that the assess- ment was unconstitutional, whether there would be any ra- tional, nonarbitrary basis for the government to retain the pro- ceeds it made from its investment of that unconstitutional as- sessment, where the legislature itself regularly recognizes, in analogous contexts, that equity requires the return of such benefits to the innocent taxpayer. There is no such rational basis. CONCLUSION For the foregoing reasons, the petition for a writ of certio- rari should be granted. Respectfully submitted, Thomas C. Goldstein Amy Howe John Bronsteen Goldstein & Howe, P.C. 4607 Asbury Pl., NW Washington, DC 20016 Harvey A. Isaacs Robert T. Stack Tompkins & Davidson, LLP 1515 Broadway — 43rd Floor New York, NY 10036 February 19, 2003 Laurence H. Tribe (Counsel of Record) Charles Fried 1575 Massachusetts Ave. Cambridge, MA 02138 (617) 495-4621 James S. O’ Kelly Alan Goggins Barnes, Richardson & Colburn 475 Park Avenue South New York, NY 10016 APPENDIX ie egies ern la UNITED STATES SHOE CORPORATION, Plaintiff- Appellee, V. UNITED STATES, Defendant-Appellant. No. 98-1574 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 296 F.3d 1378; 2002 U.S. App. LEXIS 14776; 2002-2 U.S. Tax Cas. (CCH) P70,186; 90 A.F.T.R.2d (RIA) 5276 July 23, 2002, Decided SUBSEQUENT HISTORY: Rehearing En Banc Denied October 22, 2002, Reported at: 2002 U.S. App. LEXIS 23176. PRIOR HISTORY: Appealed from: United States Court of International Trade. Judge Jane A. Restani. United States Shoe Corp. v. United States, 22 Ct. International Trade 613, 1998 Ct. Intl. Trade LEXIS 76, (1998) DISPOSITION: REVERSED. 2a COUNSEL: James S. O'Kelly, Barnes, Richardson & Colburn, of New York, New York, argued for plaintiff-appellee. With him on the brief were Harvey A. Isaacs and Robert T. Stack, Tompkins & Davidson, LLP, of New York, New York. Of counsel on the brief were Alan Goggins and Kevin J. Sulli- van, Barnes, Richardson & Colburn. Jeffrey A. Belkin, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washing- ton, DC, argued for defendant-appellant. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; and Todd M. Hughes, Assistant Director. Of counsel on the brief was Richard McManus, Office of the Chief Counsel, United States Customs Service, of Washington, DC. Of counsel was Lara Levinson, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC. John J. Galvin, Galvin & Mlawski, of New York, New York, for amicus curiae Arbon Steel & Service Co. John M. Peterson, Neville Peterson LLP, of New York, New York, for amici curiae Totes-Isotoner, Inc., et al. With him on the brief were George W. Thompson, Michael K. Tomenga, and Maria E. Celis. Barry E. Cohen, Crowell & Moring LLP, of Washington, DC, for amicus curiae E.I. Du Pont de Nemours & Co. JUDGES: Before MAYER, Chief Judge, RADER and BRYSON, Crr- cuit Judges. OPINION BY: MAYER 3a OPINION: MAYER, Chief Judge. The United Stzies appeals the judgment of the Court of In- ternational Trade granting United States Shoe Corporation's motion for payment of interest on its refund of the Harbor Maintenance Tax. United States Shoe Corp. v. United States, 22 C.L.T. 613, 20 LT.R.D. (BNA) 1703 (Ct. Int'l Trade 1998). Because the payment of interest is not mandated by statute or the Constitution, we reverse. Background The Harbor Maintenance Tax was enacted by Congress as part of the Water Resources Development Act of 1986. 26 U.S.C. §§ 4461-4462 (2000). It levied a 0.125 percent ad valo- rem tax on commercial cargo for any port use. /d. § 4461(b). In 1995, the Court of International Trade decided that the tax im- Posed on exports was unconstitutional because it violated the Export Clause's mandate that "no Tax or Duty shall be laid on Articles exported from any State," U.S. Const. art. I, § 9, cl. 5. See United States Shoe Corp. v. United States, 19 C.L.T. 1284, 907 F. Supp. 408 (Ct. Int'l Trade 1995). The court then decided that in addition to a refund of the tax payment, interest was due pursuant to 28 U.S.C. § 2411. United States Shoe Corp. y. United States, 20 C.I.T. 206 (Ct. Int'l Trade 1996). The award On appeal, this court agreed that the tax was unconstitu- tional, United States Shoe Corp. v. United States, 114 F.3d 1564 (Fed. Cir. 1997), and the Supreme Court affirmed, stating that the tax "is not a fair approximation of services, facilities, or benefits furnished to exporters, and therefore does not qualify as a permissible user fee," United States v. United States Shoe Corp., 523 U.S. 360, 363, 140 L. Ed. 2d 453, 118 S. Ct. 1290 (1998). The stay on the payment of interest dissolved, and pur- ee 4a suant to its 1996 judgment, the Court of International Trade awarded U.S. Shoe interest. The United States asks that we re- verse the judgment. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). Discussion We review statutory interpretation by the Court of Interna- tional Trade without deference. Saarstahl AG v. United States, 78 F.3d 1539, 1542 (Fed. Cir. 1996). Constitutional interpreta- tion is also a question of law, which we review de novo. Flor- ida Sugar Mktg. & Terminal Ass'n, Inc. v. United States, 220 F.3d 1331, 1333 (Fed. Cir. 2000). A court may fashion equita- ble remedies, but it may not abuse its discretion in doing so. Massie v. United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000). An equitable remedy here must not be (1) clearly unreasonable, arbitrary or fanciful or (2) based on an erroneous conclusion of law. Institut Pasteur & Genetic Sys. Corp. v. Cambridge Bio- tech Corp., 186 F.3d 1356, 1369 (Fed. Cir. 1999). Interest may only be recovered in a suit against the gov- ernment if there has been a clear and express waiver of sover- eign immunity by contract or statute, or if interest is part of compensation required by the Constitution. Library of Con- gress v. Shaw, 478 U.S. 310, 311, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986); Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 47, 73 L. Ed. 170, 49 S. Ct. 52 (1928). U.S. Shoe ar- gues that interest is due on its payment of the Harbor Mainte- nance Tax under (1) statutory provisions providing for the payment of interest, (2) the Takings and Export Clauses of the Constitution, and (3) the discretionary power of a court to fash- ion equitable remedies. I. The government argues that the Court of International Trade erred in awarding U.S. Shoe interest because the United States has not expressly consented to such an award, relying on International Business Machines Corp. v. United States, 201 a Sa F.3d 1367, 1374 (Fed. Cir. 2000). We agree. IBM looked to the Statutes which waived immunity to pay interest and concluded that neither a tax related statute, 28 U.S.C. § 2411, nor customs related statutes, 28 U.S.C. § 2644 and 19 U.S.C. § 1505, per- mitted the award. /d. First, 28 U.S.C. § 2411 provides: "In any judgment of any court rendered ... for any Overpayment in respect of any inter- nal-revenue tax, interest shall be allowed from the date of the payment" /BM held that the Harbor Maintenance Tax statute, 26 U.S.C. § 4462, expressly prohibited the application of sec- tion 2411 because it is a tax law, and not a customs law. 201 F.3d at 1372. Section 4462(f)(1) states that "all administrative and enforcement provisions of customs laws and regulations shall apply .. as if such tax were a customs duty." "Administra- tion and enforcement" encompass the "assessment and collec- tion of tax payments and issuance of refunds and interest on those refunds." 201 F.3d at 1372. Because section 2411 does not apply to refunds of the tax, id. at 1373, the Court of Interna- tional Trade improperly awarded U.S. Shoe interest under it. Second, 28 U.S.C. § 2644 provides for post-summons in- terest for claims that invoke the Court of International Trade's jurisdiction under 28 U.S.C. § 1581(a). For review under this subsection, a party must have filed a protest under section 515 of the Tariff Act of 1930. 28 U.S.C. § 1581(a) (2000). In IBM, section 1581(a) jurisdiction was not invoked because IBM did not file a customs protest; therefore section 2644 interest could not be awarded. 201 F.3d at 1374. Instead, jurisdiction in IBM arose under section 1581(i), the residual jurisdiction provision. Id. Likewise in this case, the Supreme Court held that jurisdic- _ tion was proper under section 1581(i), U.S. Shoe, 523 U.S. at 365, thereby prohibiting an award of section 2644 interest. Third, 19 U.S.C. § 1505 provides for prejudgment interest, and states in relevant part that "interest on excess moneys de- posited shall accrue ... from the date the importer ... deposits estimated duties, fees, and interest .. to the date of liquidation 6a or reliquidation of the applicable entry or reconciliation [of the imports]." 19 U.S.C. § 1505(c) (emphases added). IBM held that section 1505(c) does not apply to exports because it speaks only to imports and declined to rewrite the "Congressional en- actment to make it fit a case for which it was clearly not in- tended." 201 F.3d at 1374. U.S. Shoe and amicus argue that IBM's interpretation is too restrictive, and that section 1505(c) should apply to exports as well as imports. They rely by analogy on the Supreme Court's holding that review of the Harbor Maintenance Tax on exports could be heard under the Court of International Trade's jurisdic- tional statute, section 1581(i), referring only to imports: "True, § 1581(i) does not use the word ‘exports.’ But that is hardly surprising in view of the Export Clause, which confines cus- toms duties to imports." U.S. Shoe, 523 U.S. at 366. U.S. Shoe urges that "exports" be read into section 1505(c) also. The Court, however, was reviewing the entire statute, and the tax on imports provided a sufficient basis for jurisdiction because the "HMT statute, although applied to exports here, does apply equally to imports." Jd. We believe the Court's reasoning 1s sound for the purpose of establishing jurisdiction, but an insuf- ficient basis upon which sovereign immunity may be waived in light of the "Supreme Court's mandate that Congress must ex- pressly consent to an award of interest." JBM, 201 F.3d at 1374. II. The government also argues that the Constitution does not mandate the payment of prejudgment interest. We agree. The Harbor Maintenance Tax was not a taking, but a violation of the Export Clause, for which no prejudgment interest is due. If not granted by statute, the Supreme Court has held only the Fifth Amendment of the Constitution to mandate the payment of interest. Shaw, 478 U.S. at 317 n.5;,Smyth v. United States, 302 U.S. 329, 353-54, 82 L. Ed. 294, 58 S. Ct. 248 (1937); Boston Sand & Gravel, 278 U.S. at 47. The Fifth Amendment states that private property shall not be "taken for public use, without just compensation." U.S. Const. amend. V. The princi- 7a ple that the "just compensation" language includes the payment of interest from the time of the taking is long standing. Sea- board Air Line Ry. Co. v. United States, 261 U.S. 299, 306, 67 L. Ed. 664, 43 S. Ct. 354 (1923) ("The requirement that ‘just compensation’ shall be paid is comprehensive ... and no specific command to include interest is necessary when interest or its equivalent is a part.of such compensation."). U.S. Shoe argues that the Harbor Maintenance Tax was a taking in violation of the Fifth Amendment because it was an unlawful confiscation of its property. We do not agree. The government's act of taxation here was not a per se taking of private property. United States v. Sperry Corp., 493 U.S. 52, 62 n.9, 107 L. Ed. 2d 290, 110 S. Ct. 387 (1989) (considering and rejecting the view that money is private property that can be physically occupied by the government: "Unlike real or per- sonal property, money is fungible."). Nor is the tax a regulatory taking: "Regulatory actions requiring the payment of money are not takings." Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1339 (Fed. Cir. 2001) (en banc) (relying on the rea- soning of five justices in Eastern Enterprises v. Apfel, 524 U.S. 498, 141 L. Ed. 2d 451, 118. Ct 2131 (1998)); Atlas Corp. v. United States, 895 F.2d 745, 756 (Fed. Cir. 1990) ("Requiring money to be spent is not a taking of property."). A "reasonable user fee is not a taking if it is imposed for the reimbursement of the cost of government services." Sperry, 493 U.S. at 63. The Harbor Maintenance Tax was imposed to "de- fray the cost of harbor development and maintenance." U.S. Shoe, 523 U.S. at 370. In Pace v. Burgess, 92 U.S. Sa, 315, 23 L. Ed. 657 (1875), a stamp fee placed on packages of tobacco for export was upheld because it "bore no Proportion whatever to the quantity or value of the package on which it was affixed" and was not excessive. Here, the fee was declared unconstitu- tional because it was Proportional to the value of the exported goods and not the actual use of the harbors. U.S. Shoe, 523 U.S. at 369 ("The connection between a service the Government renders and the compensation it receives for that service must 8a be closer than is present here ... the extent and manner of port use depend on factors such as the size and tonnage of a vessel, ‘the length of time it spends in port, and the services it re- quires."). But it was not excessive. Under Sperry, a user fee of 1.5 percent "does not qualify as a ‘taking’ by any standard of excessiveness." 493 U.S. at 62. Similarly, purely by its amount, 0.125 percent, 26 U.S.C. § 4461(b) (2000), the Harbor Mainte- nance Tax must be considered reasonable. Because "the Tak- ings Clause is less restrictive than the Export Clause," U.S. Shoe, 523 U.S. at 369, and the tax would be sustained if it "fairly matched the exporters’ use of port services and facili- ties," id. at 370, we conclude that the tax did not rise to the level of a taking. U.S. Shoe also contends that the government's retention of the interest income earned on the tax revenue is a continuing taking. But U.S. Shoe has not established a private property right in the interest generated by the payment of the tax. See Eastern Enterprises, 524 U.S. at 543 (Kennedy, J., concurring). The Harbor Maintenance Tax did not "appropriate, transfer, or encumber an estate in land ..., a valuable interest in an intangi- ble ..., or even a bank account or [its associated] accrued inter- est." Jd. at 540. For the accrued interest to rise to the level of private property, the principal must be held in an identified pri- vate account. See Phillips v. Washington Legal Found., 524 U.S. 156, 164, 141 L. Ed. 2d 174, 118 S. Ct. 1925 (1998) (stat- ing that client fees held in trust accounts constituted "private property"). And then any interest accrued belongs to the owner of the principal. Jd. at 172 (holding that the "interest income generated by funds held in IOLTA accounts [client accounts} is the 'private property’ of the owner of the principal"). The tax revenue here was not held by the government as property of U.S. Shoe. It became the property of the Treasury upon pay- ment, and was appropriated to the Harbor Maintenance Trust Fund along with user fees on imports, passenger cruise ships, and domestic shipments, and other statutory fees. 26 U.S.C. § 9505(b) (2000). Accordingly, the interest earned on the tax 9a payments is also the property of the government. And its use for harbor maintenance expenditures, id. § 950S(c), cannot be a taking. U.S. Shoe also argues that the Harbor Maintenance Tax was so arbitrary that it was an egregious violation of due process, and therefore a taking. See Brushaber v. Union Pac. R.R. Co., 240 U.S. 1, 24-25, 60 L. Ed. 493, 36 S. Ct. 236 (1916) ("Al- though there was a seeming exercise of the taxing power, the act complained of was so arbitrary as to constrain to the con- clusion that it was not the exertion of taxation but a confisca- tion of property, that is, a taking ...."). We do not agree. The tax was not arbitrary because it served the rational purpose of maintaining the ports. See U.S. Shoe, 114 F.3d at 1579 (Mayer, C.J., dissenting) ("Congress mandated that fees collected from the HMT be used only for commercial navigation projects."); see also Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 547, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (White, J., dis- senting on other grounds) (statutes restrictive of liberty must have "an ascertainable purpose and represent a rational means to achieve that purpose ...."). The Court struck down the tax because it was improperly calculated, not because its purpose was unascertainable or nefarious. U.S. Shoe, 523 U.S. at 363, 370 (The tax was not "a fair approximation of services, facili- ties, or benefits furnished to the exporters," but "this does not mean that exporters are exempt from any and all user fees de- signed to defray the cost of harbor development and mainte- nance."). Moreover, the tax cannot be a taking because the Su- preme Court determined that the tax violated the Export Clause, not the Takings Clause. Jd. at 368 ("Those decisions [discuss- ing user fees] [including Sperry, a takings case] involved con- Stitutional provisions other than the Export Clause, however, and thus do not govern here."). In the alternative, U.S. Shoe argues that the Export Clause mandates the payment of interest. It cites Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373 (Fed. Cir. 2000), that a claim against the government for a violation of the Export 10a Clause is money mandating, and requires "a return of money unlawfully exacted." Cyprus Amax, however, was premised on the award of money damages to U.S. Shoe "equaling the amount exacted under the HMT" only, id. at 1374; U.S. Shoe, 114 F.3d at 1577, and does not discuss, nor stand for the propo- sition that interest must be awarded. U.S. Shoe also relies on Hatter v. United States, 38 Fed. Cl. 166 (1997), to assert that violations of constitutional clauses other than the Takings Clause require the payment of interest. In Hatter, the Court of Federal Claims decided that judges were due interest on money owed because of an Article II] Compen- sation Clause violation. /d. at 183. See also Hatter v. United States, 64 F.3d 647, 653 (Fed. Cir. 1995), aff'd in part, rev'd in part, Hatter v. United States, 532 U.S. 557, 149 L. Ed. 2d 820, 121 S. Ct. 1782 (2001) (affirming that discriminatory taxes im- posed on sitting judges violated the Compensation Clause). The interest issue, however, was not appealed by the government, and the final judgment of the Court of Federal Claims 13 not binding upon us. Aleman Food Servs., Inc. v. United States, 994 F.2d 819, 822 (Fed. Cir. 1993). Even if interest is man- dated under the Compensation Clause, the reasoning upon which this conclusion is based does not extend to the Export Clause. Under the Compensation Clause, "Judges ... shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." U.S. Const. art. III, § 1. The construction of the Export Clause dif- fers from the Compensation Clause. The Export Clause is pro- hibitive, "No Tax or Duty shall be laid on Articles exported from any State," U.S. Const. art. I, § 9, cl. 5, while the Com- pensation Clause requires that judges shall receive "Compensa- tion." Such "Compensation" must be paid at "stated Times," indicating that if it is not paid when due, interest should be paid to compensate for the delay. Hatter, 38 Fed. Cl. at 183. And the rationale, that the government should pay interest if it un- a, ee ee ee tt f vessels and to facilitate their use of the har- bor." /d. at 264. Here, there is no such effect. The HMT does not ensure vessel safety, but was designed to cover the costs of dredging the harbors. See S. Rep. No. 99-126 at 9 (1986), re- printed in 1986 U.S.C.C.A.N. 6639, 6647. 88a Finally, certain of the amici, given leave to file briefs here, argue that, because the HMT is unconstitutional and therefore void ab initio, all monies collected since the implementation of the HMT should be refunded. As US Shoe does not seek such recovery, there is no need for us to reach this issue. Similarly, we do not reach the issue of whether the HMT violates the Port Preference Clause because it is not necessary to our disposition of this appeal. CONCLUSION We conclude that the trial court properly exercised jurisdic- tion pursuant to 28 U.S.C. § 1581(i). Because Customs merely receives the funds from the exporters and transfers the funds to the Trust Fund without exercising any discretion, performing any analysis, calculating any amounts or issuing any decision or order, there was no Customs' "decision" for US Shoe to pro- test, and jurisdiction therefore could not be proper under 28 U.S.C. § 1581(a). Moreover, because the HMT is a tax, as op- posed to a user fee, directly imposed on goods in export transit, we conclude that the HMT statute, as applied to exports, vio- lates the Export Clause and is therefore invalid to the extent it applies to exports. Therefore, the trial court properly (1) granted summary judgment that the HMT statute was unconsti- tutional, (2) enjoined the government from collecting further HMT on exports, and (3) ordered it to refund the HMT amounts paid by US Shoe for the period assessed in the com- plaint. Accordingly, the judgment of the Court of International Trade is AFFIRMED. 89a DISSENT BY: MAYER DISSENT: MAYER, Circuit Judge, dissenting. Because in my view the Harbor Maintenance Tax (HMT) is a user fee, it does not violate the Export Clause of the Constitu- tion. Statutes are presumed constitutional. Fairbank v. United States, 181 U.S. 283, 285, 45 L. Ed. 862, 21 S. Ct. 648 (1901). We must "not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitution- ally forbidden it." Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988). Indeed, courts must strive to avoid constitutional questions. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-01, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979) (courts are required to choose any reason- able construction of a statute that would eliminate the need to confront a contested constitutional issue); Hooper v. California, 155 U.S. 648, 657, 39 L. Ed. 297, 15 S. Ct. 207 (1895) (courts must resort to "every reasonable construction ... in order to save a statute from unconstitutionality"). Thus, "where an otherwise acceptable construction of a statute would raise serious consti- tutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." DeBartolo, 485 U.S. at 575. In light of these mandates, the question is whether the HMT is a tax or duty within the proscription of the Export Clause or whether it is a permissible user fee. Generally, a tax is enacted to raise revenue "to go to the general support of the govern- 90a ment," see Head Money Cases, 112 U.S. 580, 596, 28 L. Ed. 798, 5 S. Ct. 247 (1884), while a user fee is designed as a spe- cific charge for the use of government facilities and services, see Commonwealth Edison Co. v. Montana, 453 U.S. 609, 621, 69 L. Ed. 2d 884, 101 S. Ct. 2946 (1981). If it is the latter, we avoid the sticky question whether the assessment violates the Export Clause. So, we must construe the HMT as a user fee, if reasonable to do so, unless it is "plainly contrary to the intent of Congress." DeBartolo, 485 U.S. at 575. Congress thought it was enacting a user fee. It is true that the statute calls the HMT a tax ¢ «d that it resides in the Internal Revenue Code. It is equally true, however, that the HMT is lev- ied on "port use." The label is not dispositive; we must dig deeper. See Head Money Cases, 112 U.S. at 595-96 ("The act is not void because, within a loose and more extended sense than was used in the Constitution, it is called a tax."); Pace v. Bur- gess, 92 US. 372, 375, 23 L. Ed. 657 (1875); see also Fair- bank, 181 U.S. at 304 (courts analyze things, not names). "In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy." See Cran- don v. United States, 494 U.S. 152, 158, 108 L. Ed. 2d 132, 110 S. Ct. 997 (1990). The object and policy of the HMT help to reveal its true identity. The Senate Report states: "The taxes and fees in this legislation are not for the purpose of raising revenue. Rather, they are to repay costs related directly to the servicing of commerce. These fees and taxes offset services rendered to vessels. The provision of a new, deeper channel is as much a service rendered to the shipper as pilotage, dockage, or wharfage."' S. Rep. No. 99-126, at 7 (1985), reprinted in 1986 U.S.C.C.A.N. 6639, 6644. The House Report similarly 'Charges for harbor services like pilotage, wharfage, and dock- age are permissible. See generally Clyde Mallory Lines v. Alabama, 296 U.S. 261, 80 L. Ed. 215, 56S. Ct. 194 (1935). 9la states that the HMT is "a charge on use by a commercial vessel of a harbor or channel (‘port’) in the United States for the load- ing or unloading of commercial cargo on or from the vessel." H.R. Rep. No. 99-228, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 6705, 6706 (emphasis added). In fact, the legisla- tive history refers repeatedly to the HMT as being based on use. See, e.g., id. at 1, reprinted in 1986 U.S.C.C.A.N. at 6706 ("Harbor (Port) User Charges"); H.R. Conf. Rep. No. 99-1013, at 228 (1986), reprinted in 1986 U.S.C.C.A.N. 6723, 6740 ("Port Use Tax"); S. Rep. No. 99-126, at 2, reprinted in 1986 U.S.C.C.A.N. at 6640 ("user taxes"); id. at 135, reprinted in 1986 U.S.C.C.A.N. at 6705 (additional views of Sen. Lauten- berg) ("user fee"). Moreover, the HMT was enacted as part of the Water Re- sources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082 (Act), "comprehensive" legislation that addressed myriad problems in the federal water resources development program. See S. Rep. No. 99-126, at 3, reprinted in 1986 U.S.C.C.A.N. at 6641. "Historically, the Federal Government had financed the full cost of designing, constructing, rehabili- tating, maintaining, and operating the ... coastal harbors of the United States." /d. at 6, reprinted in 1986 U.S.C.C.A.N. at 6643-44. Yet, the law did not "impose Federal user fees or charges on the beneficiaries of these expenditures." H.R. Rep. No. 99-228, at 5, reprinted in 1986 U.S.C.C.A.N. at 6709. Congress found that traditional harbor maintenance policy would "not meet national needs" because it was "unlikely that the Federal Government [would] finance the construction of such port improvements." S. Rep. No. 99-126, at 8, reprinted in 1986 U.S.C.C.A.N. at 6646. As the House Report explains: "Additional Federal investment is needed for operations and maintenance of U.S. channels and harbors (ports) in order to improve and maintain such ports for waterborne commerce. Such additional investment in U.S. ports will facilitate eco- nomic development and make the Nation's water transportation 92a system more efficient." H.R. Rep. No. 99-228, at 5, reprinted in 1986 U.S.C.C.A.N. at 6709. Importantly, Congress found that these needs were "clearly commercial." S. Rep. No. 99-126, at 6, reprinted in 1986 U.S.C.C.A.N. at 6644 (emphasis added). It decided "that a por- tion of Federal expenditures needed for port operations and maintenance should be borne by the direct beneficiaries of such expenditures," commercial users. H.R. Rep. No. 99-228, at 4 reprinted in 1986 U.S.C.C.A.N. at 6709 (emphasis added). Congress targeted commercial users to help shoulder the fiscal burden of operations and maintenance costs for harbors and inland waterways because they are the parties who enjoy their benefits. The government "has an obvious interest in making those who specifically benefit from its services pay the cost." Massachusetts v. United States, 435 U.S. 444, 462, 55 L. Ed. 2d 403, 98 S. Ct. 1153 (1978). One of Congress' primary difficulties, however, was decid- ing how to craft a user fee to "help defray the costs of maintain- ing new harbors deeper than 45 feet."” S. Rep. No. 99-126, at 10, reprinted in 1986 U.S.C.C.A.N. at 6647. "In recent years, the Committee considered a variety of proposals involving har- bor maintenance. These ranged from diverting a portion of cus- toms revenues for harbor work to port-by-port maintenance fees to more studies. The debate in some cases is between high maintenance harbors and low maintenance harbors; in others it is between large ports and small ports; or between bulk cargo 6645. Yet the size of vessels has so increased that harbors forty-five feet deep are now "inadequate for many fully loaded tankers." Id. at 8, reprinted in 1986 U.S.C.C.A.N. at 6645. Congress found that the constraints of these shallow harbors "add to the costs of importing crude oil and petroleum products," and that "deeper draft harbors would facilitate the export of U.S. coal and, eventually, other bulk commodities, such as grain and ores." /d. 93a and containerized cargo ports." Jd. at 9, reprinted in 1986 U.S.C.C.A.N. at 6646. In fact, the Senate Subcommittee on Water Resources held twenty-six hearings over three Con- gresses and more than four years on the Act. Jd. at 116, re- printed in 1986 U.S.C.C.A.N. at 6688. Ultimately, it opted to impose a nationally-uniform fee on the "value of the cargo passing through harbors." Jd. at 9, reprinted in 1986 U.S.C.C.A.N. at 6646; see also id. at 111-12, reprinted in 1986 U.S.C.C.A.N. at 6684. The House Report explains that "the ad valorem basis of the charges is the only acceptable basis on which to impose such charges. This national, uniform basis minimizes any possible competitive disadvantages among cargo types and U.S. ports which otherwise might result from user charges." H.R. Rep. No. 99-228, at 5-6, reprinted in 1986 U.S.C.C.A.N. at 6710. Critically, Congress mandated that fees collected from the HMT be used only for commercial navigation projects. *Mon- ies in the Harbor Maintenance Trust Fund (HMTF) may be used only to pay (1) for the operations and maintenance costs of the United States portion of the St. Lawrence Seaway, and for the eligible operations and maintenance costs "assigned to commercial navigation of all harbors and inland harbors within the United States," 33 U.S.C. § 2238(a) (1994) (emphasis added), referenced in 26 U.S.C. § 9505(c)(1) (1994); and (2) for all of the expenses of administering the HMT incurred by the Departments of Treasury and Commerce and the U.S. Army Corps of Engineers, up to $ 5,000,000 per fiscal year, 26 U.S.C. § 9505(c)(3).4 So, HMT charges, collected from com- > Interest earned on monies in the Harbor Maintenance Trust Fund (HMTF) also remains in the fund. * 26 U.S.C. § 9505(c)(2) permits monies in the fund to be used to pay rebates of tolls or charges levied for use of the St. Lawrence Seaway, as required by 33 U.S.C. § 988a. Section 988a was amended in 1994, however, to waive the collection of tolls or charges on commercial vessels, instead of requiring commercial users to pay the 94a mercial users, may only be expended for harbor operations and maintenance costs incurred on their behalf. The government has been true to this constraint. In its ini- tial report to Congress on the HMTF's status, the government explained that operations and maintenance costs for commer- cial navigation were accounted for in the "Corps of Engineers Management Information System." First Annual Report to Congress on the Status of the Harbor Maintenance Trust Fund for Fiscal Years 1987 - 1992 at 2, P 6 [hereinafter First Report]. In deciding which expenditures were reimbursable, the gov- ernment recognized that some projects have both a "commer- cial navigation" purpose and some other purpose, such as rec- reation, hydropower, or flood control. /d. at 3, P 7. All opera- tions and maintenance expenditures made for single purpose commercial navigation projects were considered subject to re- imbursement from the HMTF. /d. In contrast, on joint purpose projects, the government allocated costs to the project's differ- ent purposes in proportion to the benefits realized for each pur- pose, recovering only the commercial navigation costs. Id.; see also Second Annual Report to Congress on the Status of the Harbor Maintenance Trust Fund for Fiscal Year 1993 at 1-2, P 4 (indicating continued compliance) [hereinafter Second Re- port]. This ensures that HMT funds collected from commercial users are spent for their benefit. In sum, it surely does not violate Congress' intent to con- strue the HMT as a user fee. The question is whether it is rea- sonable to interpret it that way. In analyzing whether a particu- lar charge constitutes a user fee, the Court has asked whether it: (1) discriminates against the constitutionally-protected interest; (2) is based on some fair approximation of the use of some sys- tem; and (3) is structured to produce revenue fairly apportioned to the total cost to the government of the benefits conferred. toll or charge and then obtain a rebate. Pub. L. No. 103-331, § 339(a), 108 Stat. 2496. 95a Massachusetts, 435 U.S. at 464; Evansville-Vanderburgh Air- port Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707, 716-17, 31 L. Ed. 2d 620, 92 S. Ct. 1349 (1972). First, the HMT does not discriminate against exporters. In- deed, the trial court did not hold to the contrary; it simply by- passed the issue and ruled the HMT a tax based on the second and third prongs of the Massachusetts test. The HMT is levied against commercial users of United States ports and harbors, including exporters, importers, domestic shippers, and passen- ger carriers (except ferries, as defined). Congress found these groups to be the principal beneficiaries of harbor operations and maintenance projects. It also required that HMT monies be expended only for their benefit. That the statute exempts some harbor users from payment does not render the HMT discrimi- natory against exporters. Some exempted users, like recrea- tional users, do not and would not benefit from operations and maintenance projects funded by the HMT because those pro- jects are commercial in nature. Requiring such users to pay the fee would be unfair. Congress made reasonable policy deci- sions to exempt other users, such as nonprofit organizations transporting humanitarian and development assistance cargo. 26 U.S.C. § 4462(h); see also id. § 4462(b) (exempting cargo transported within Alaska, Hawaii, or any United States pos- session, or between those locales and the United States main- land "because of the high dependence of these islands’ econo- mies on waterborne commerce." H.R. Rep. No. 99-228, at 6, reprinted in 1986 U.S.C.C.A.N. at 6710). These exemptions do not compromise the HMT's non-discriminatory status. Second, the HMT is based on a fair, if imperfect, approxi- mation of exporters' use of, or privilege to use, United States harbors and ports. When the government "applies user charges to a large number of parties, it probably will charge a user more or less than it would under a perfect user-fee system." United States v. Sperry Corp., 493 U.S. 52, 61, 107 L. Ed. 2d 290, 110 S. Ct. 387 (1989). "Perfect uniformity and perfect equality of taxation, in all the respects in which the human mind can view 96a it, is a baseless dream." Head Money Cases, 112 U.S. at 595. Consequently, the amount of a user fee need not be "precisely calibrated to the use that a party makes of Government ser- vices." Sperry, 493 U.S. at 60. The government concedes that the HMT, like most user fees, is imperfect, but contends that it is a fair approximation of use. U.S. Shoe argues, and the court held, that this is wrong for four primary reasons: (1) all harbor users do not pay the fee, (2) there is no correlation between the charges coilected at a par- ticular port and expenditures for that port's maintenance and operations, (3) low-value, bulk cargo importers and exporters use the port facilities to a greater extent than high-value, non- bulk cargo importers and exporters yet pay lower fees, and (4) the ad valorem nature of the fee does not accurately measure use. The first three, of course, are the precise concerns with which the legislature wrestled over three Congresses and more than four years. The fourth challenge is to what Congress found to be "the only acceptable basis on which to impose such charges" because it was "uniform" and "minimizes any possible competitive disadvantages among cargo types and U.S. ports which otherwise might result from user charges." H.R. Rep. No. 99-228, at 5-6, reprinted in 1986 U.S.C.C.A.N. at 6710. "This was obviously the judgment of Congress and we [should] abide by it." Sperry, 493 U.S. at 62. Notwithstanding, I address each issue in turn. For the same reasons that the HMT is not discriminatory, the fact that all users of our harbors and ports do not pay the fee does not mean it is an unfair approximation of use by those against whom the assessment is levied. See Evansville, 405 U.S. at 717-18 (upholding a user fee as a fair approximation of the use of the facilities for whose benefit they are imposed even though "a majority of the actual number of persons who use facilities of the airports involved" were exempt, because the exemptions were not "wholly unreasonable"). Nor is there merit to U.S. Shoe's second argument that because fees col- lected at a particular port are not necessarily expended for op- 97a erations and maintenance at that port, the fee is not a fair meas- ure of use. This is an overly narrow view. Users do not benefit only from access to the particular ports they use. Every ex- porter has all ports and harbors available to it. Those that never use certain ports benefit from them "in the sense that [they] are available for their use if needed and in that" the provision of better harbor maintenance services "makes the [ports] safer for all users." Massachusetts, 435 U.S. at 468; see also Sperry, 493 U.S. at 63. Finally, U.S. Shoe's related third and fourth arguments do not establish that the HMT is not a fair approximation of use. Initially, there is great irony in the argument that the charge is unfair because high-value, non-bulk cargo carriers are assessed higher fees than low-value, bulk cargo shippers, yet allegedly "use" harbors to a lesser extent. Exporters generally ship low- value cargo, such as grain and coal, which is transported in bulk. See First Report at 3, P 9. Importers, on the other hand, tend to ship high-value cargo, like electronics and automobiles, which is not shipped in bulk. /d. Consequently, exporters are generally assessed lower fees than importers, yet they purport- edly "use" the harbors to a greater extent because of the bulk nature of their shipments. Thus, it is the exporters themselves who allegedly are not bearing their fair share. In addition to the irony, U.S. Shoe's argument is unpersua- sive. First, not all bulk cargo is of low value, nor, undoubtedly, is all non-bulk cargo of high value. For example, some "high value" commodities, such as "petroleum," are transported in bulk. /d. Thus, to say that the HMT is unfair because low-value Cargo carriers use ports to a greater extent than high-value cargo carriers is not wholly accurate. Second, even if a high- value cargo shipper never requires the use of harbors deeper than forty-five feet, there is nothing in the record to support the notion that the only operations and maintenance projects under- taken with HMTF monies are deep-harbor dredging. Indeed, U.S. Shoe does not argue that projects financed with HMTF monies are so limited. While projects are limited to those that 98a inure to the benefit of commercial users, the government has discretion to decide which projects those are. That some users, like exporters, transport some bulk products of lower value than some non-bulk products transported by other users, does not make the HMT a tax. Nor does its ad valorem structure. It is beyond dispute that an ad valorem charge can be a user fee. See Sperry, 493 U.S. at 59-64; Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516 (1 Ith Cir. 1990); see also Alamo Rent-A-Car, Inc. v. City of Palm Springs, 955 F.2d 30 (9th Cir. 1992). Notwithstanding, U.S. Shoe attempts to distinguish Sperry and Alamo on the ground that the parties assessed the user fees in those cases were direct beneficiaries of the provided services. Here, it argues, the direct beneficiaries are the vessel owners, nct the importers and ex- porters who pay the fee. There are two problems with this ar- gument. First, it flies in the face of Congress’ finding that ex- porters are the direct beneficiaries. Congress decided that a por- tion of federal expenditures needed for port operations and maintenance should be borne by the direct beneficiaries of such expenditures, among whom it obviously included exporters and importers. Second, the Court rejected a similar argument in Evansville. There, it held that it is not "particularly important whether the charge is imposed on the passenger himself, to be collected by the airline, or on the airline, to be passed on to the passenger if it chooses." 405 U.S. at 714. Similarly, here it is unimportant whether the fee be assessed against exporters and importers, the ultimate beneficiaries of the harbor maintenance and operations projects, or against the actual vessel owner, to be passed on to the importers or exporters if it chooses. Finally, the HMT is structured to produce revenue fairly apportioned to the total cost to the government of the benefits conferred. The relevant inquiry is whether Congress structured the HMT so that the monies collected under it are "fairly appor- tioned" to the government's cost of providing commercial har- bor maintenance services. U.S. Shoe argues, and the trial court held, that the HMT fails this prong for two primary reasons: (1) 99a it funds projects yet to be commenced rather than reimbursing the government for completed projects, and (2) the HMTF has accumulated a large surplus. The first objection is misplaced; the second, while troubling, is unavailing. Regardless of the factual accuracy of U.S. Shoe's first con- cern,’ when viewed in light of the purposes for which the HMT was enacted, it is of little relevance that HMT monies might fund port operations and maintenance projects not completed, or even initiated, at the time of collection. The HMT is not a short-term fix to the myriad problems that plague our nation's waterborne commerce. It is a long-term vehicle to improve and to maintain the harbors for the continuing benefit of United States commerce. Indeed, Congress expressly found that the fee will facilitate economic development. "[A] surplus of revenue over outlays in any one year can be offset against actual deficits of past years and perhaps against projected deficits of future years." Massachusetts, 435 U.S. at 470 n.25 (emphasis added). The Eleventh Circuit has also recognized that user fees may be expended on future projects. In Alamo, it held that "given the long term nature of maintaining and developing an airport, it was appropriate ... to factor in future development plans when setting user fees." 906 F.2d at 522. Thus, it is of little moment that HMT monies are purportedly expended to fund projects not yet started rather than to repay the government for services that have already been rendered. ° The First Report states that "the actual transfer of funds from the [HMTF] is for expenditures made in the previous fiscal year. In other words, FY 1990 expenditures are shown as transfers from the [HMTF] in FY 1991, and so forth. Corps expenditures are never made directly from the [HMTF], nor are transfers made on the basis of estimates or projections." First Report at 3, P 7. This indicates that FY 19xx projects are reimbursed from the HMTF with FY 19xx, or perhaps surplus, funds in FY 19xx+1. 100a Similarly, the fact that the HMTF enjoys, or perhaps suf- fers, a large surplus does not resolve whether Congress struc- tured the HMT as a tax or a user fee. To be sure, the substantial surplus weighs against finding the HMT a user fee. But this does not, of itself, render it a tax. A closer look reveals that the HMT's structure was not ill-conceived. From 1987 through 1990, during’ which the HMT was only 0.04% ad valorem and paid just 40% of eligible Corps costs, revenues and expendi- tures were closely aligned. See First Report at 6, P 13. For ex- ample, in FY 1988, HMTF expenditures actually exceeded revenues by approximately $ 6 million, and the ending balance was just $ 9 million. Jd. Trouble began in 1991, when Congress increased the ad valorem rate to 0.125% in order to fund 100% of eligible Corps expenses and to reimburse the National Oceanic and Atmos- pheric Administration (NOAA) $ 45.5 million for its annual commercial navigation costs. While the revenue generated un- der the higher rate was only slightly less than projected, expen- ditures were considerably less, resulting in a growing HMTF surplus. Withdrawals from the HMTF were less than antici- pated due primarily to (1) the absence of legislation authorizing NOAA to receive its commercial navigation costs, (2) the fact that the Corps' operations and maintenance budget was lower than had been projected in 1990 when the new ad valorem rate was established, and (3) withdrawals from the HMTF for im- proved administration and enforcement, while authorized, re- mained unappropriated. See, e.g., Second Report at 5, P 10. The surplus has certainly burgeoned in recent years as a re- sult of these unforeseen decreases in projected expenditures, but that does not mean that the HMT's structure shows it to be a tax. Congress is not prescient. In fact, the government recog- nizes that this is a problem about which something must be done. See Third Annual Report to Congress on the Status of the Harbor Maintenance Trust Fund for Fiscal Year 1994 at 7, P 16 ("The growing surplus in the HMTF remains. This can only be corrected by widening the authorized uses for HMTF monies, 10la or by reducing the HMF [sic] to a level consistent with its an- nual expenditures."). Congress has already amended the HMT statute once. There is no reason to believe that it will not cor- rect the growing surplus. Until then, commercial users know that all HMT monies plus interest may only be expended for harbor operations and maintenance projects with commercial purposes. They may not be used for the general support of the government. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 371-72, 127 L. Ed. 2d 183, 114 S. Ct. 855 (1994) (declining to decide whether an airport user fee, which had ac- cumulated "huge surpluses," was excessive under Evansville, in part because all fees collected had to be expended for the air- port's capital or operating costs, and the airlines challenging the fee had not suggested that the surplus was being used for any purpose other than airport-related expenses); Head Money Cases, 112 U.S. at 596 (charges imposed on shipowners for each immigrant they brought into the United States, which were deposited into an "immigrant fund" appropriated in ad- vance for the temporary care of passengers whom shipowners transported, was not a tax). I would reverse the judgment of the Court of International Trade. 102a UNITED STATES, PETITIONER We UNITED STATES SHOE CORPORATION No. 97-372 SUPREME COURT OF THE UNITED STATES 523 U.S. 360; 118 S. Ct. 1290; 140 L. Ed. 2d 453; 1998 U.S. LEXIS 2300; 66 U.S.L.W. 4251; 98-1 U.S. Tax Cas. (CCH) P45,325; 81 A.F.T.R.2d (RIA) 1256; 98 Cal. Daily Op. Service 2336; 98 Daily Journal DAR 3171; 11 Fla. L. Weekly Fed. S 429 March 4, 1998, Argued March 31, 1998, Decided PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT. DISPOSITION: 114 F.3d 1564, affirmed. JUSTICE GINSBURG delivered the opinion of the Court. 103a - The Export Clause of the Constitution states: "No Tax or Duty shall be laid on Articles exported from any State." U.S. Const., Art. I, § 9, cl. 5. We held in United States v. Interna- tional Business Machines Corp. (IBM), 517 U.S. 843, 116 S. Ct. 1793, 135 L. Ed. 2d 124 (1996) that the Export Clause categorically bars Congress from imposing any tax on exports. The Clause, however, does not rule out a "user fee," provided that the fee lacks the attributes of a generally applicable tax or duty and is, instead, a charge designed as compensation for government-supplied services, facilities, or benefits. See Pace v. Burgess, 92 U.S. 372, 375-376, 23 L. Ed. 657 (1876). This case presents the question whether the Harbor Maintenance Tax (HMT), 26 U.S.C. § 4461(a), as applied to goods loaded at United States ports for export, is an impermissible tax on ex- ports or, instead, a legitimate user fee. We hold, in accord with the Federal Circuit, that the tax, which is imposed on an ad va- lorem basis, is not a fair approximation of services, facilities, or benefits furnished to the exporters, and therefore does not qualify as a permissible user fee. I. The HMT, enacted as part of the Water Resources Devel- opment Act of 1986, 26 U.S.C. §§ 4461-4462, imposes a uni- form charge on shipments of commercial cargo through the Na- tion's ports. The charge is currently set at 0.125 percent of the cargo's value. Exporters, importers, and domestic shippers are liable for the HMT, § 4461(c)(1), which is imposed at the time of loading for exports and unloading for other shipments, § 4461(c)(2). The HMT is collected by the Customs Service and deposited in the Harbor Maintenance Trust Fund (Fund). Con- gress may appropriate amounts from the Fund to pay for harbor maintenance and development projects, including costs associ- ated with the St. Lawrence Seaway, or related expenses. § 9505. Respondent United States Shoe Corporation (U.S. Shoe) paid the HMT for articles the company exported during the pe- 104a riod April to June 1994 and then filed a protest with the Cus- toms Service alleging the unconstitutionality of the toll to the extent it applies to exports. The Customs Service responded with a form letter stating that the HMT is a statutorily man- dated fee assessment on port users, not an unconstitutional tax on exports. On November 3, 1994, U.S. Shoe brought this ac- tion against the Government in the Court of International Trade (CIT). The company sought a refund on the ground that the HMT is unconstitutional as applied to exports. Sitting as a three-judge court, the CIT held that its jurisdic- tion was properly invoked under 28 U.S.C. § 1581(i); on the merits, the CIT agreed with U.S. Shoe that the HMT qualifies as a tax. 907 F. Supp. 408 (1995). Rejecting the Government's characterization of the HMT as a user fee rather than a tax, the CIT reasoned: "The Tax is assessed ad valorem directly upon the value of the cargo itself, not upon any services rendered for the cargo .... Congress could not have imposed the Tax any closer to exportation, or more immediate to the articles ex- ported." /d., at 418. Relying on the Export Clause, the CIT en- tered summary judgment for U.S. Shoe. The Court of Appeals for the Federal Circuit, sitting as a five-judge panel, affirmed. 114 F.3d 1564 (1997). On auxiliary questions, the Federal Circuit upheld the CIT's exercise of ju- risdiction under § 1581(i) and agreed with the lower court that the HMT applied to goods in export transit.’ Concluding that the HMT is not based on a fair approximation of port use, the Federal Circuit also agreed that the HMT imposes a tax, not a user fee. In making this determination, the Court of Appeals emphasized that the HMT does not depend on the amount or manner of port use, but is determined solely by the value of cargo. Judge Mayer dissented; in his view, Congress properly designed the HMT as a user fee, a toll on shippers that supplies 'The Government does not here challenge the determination that the HMT applies to goods in export transit. 105a funds not for the general support of government, but exclu- sively for the facilitation of commercial navigation. Numerous cases challenging the constitutionality of the HMT as applied to exports are currently pending in the Court of International Trade and the Court of Federal Claims.” We granted certiorari, 522 U.S. (1997), to review the Federal Cir- cuit's determination that the HMT violates the Export Clause. IT. As an initial matter, we conclude that the CIT properly en- tertained jurisdiction in this case. The complaint alleged exclu- sive original jurisdiction in that tribunal under 28 U.S.C. § 1581(a) or, alternatively, § 1581(i). App. 26. We agree with the CIT and the Federal Circuit that § 1581(i) is the applicable ju- risdictional prescription. The key directive is stated in 26 U.S.C. § 4462(f)(2), which instructs that for jurisdictional pur- poses, the HMT "shall be treated as if such tax were a customs duty." Section 1581(a) surely concerns customs duties. It confers exclusive original jurisdiction on the Court of International Trade in "any civil action commenced to contest the [Customs Service's] denial of a protest." A protest, as indicated in 19 U.S.C. § 1514, is an essential prerequisite when one challenges an actual Customs decision. As to the HMT, however, the Fed- eral Circuit correctly noted that protests are not pivotal, for Customs "performs no active role," it undertakes "no analysis [or adjudication]," "issues no directives," "imposes no liabili- ties"; instead, Customs "merely passively collects" HMT pay- ments. 114 F.3d at 1569. According to the Government, some 4,000 case raising this claim are currently stayed in the CIT, with more than 100 additional cases stayed in the Court of Federal Claims. See Brief for United States 4. 106a Section 1581(i) describes the Court of International Trade's residual jurisdiction over "any civil action commenced against the United States ... that arises out of any law of the United States providing for "(1) revenue from imports or tonnage; "(4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection. This dispute, as the Federal Circuit stated, "involves the administration and enforcement' of a law providing for revenue from imports because the HMT statute, although applied to ex- ports here, does apply equally to imports." 114 F.3d at 1571. True, § 1581(i) does not use the word "exports." But that is hardly surprising in view of the Export Clause, which confines customs duties to imports. Revenue from imports and revenue from customs duties are thus synonymous in this setting. In short, as the CIT correctly concluded and the Federal Circuit correctly affirmed, "Congress [in § 4462(f)(2)] directed [that] the [HMT] be treated as a customs duty for purposes of juris- diction. Such duties, by their very nature, provide for revenue from imports, and are encompassed within [ § ]1581(i)(1)." 907 F. Supp. at 421. Accordingly, CIT jurisdiction over controver- sies regarding the administration and enforcement of the HMT accords with § 1581(i)(4).° * Because we determine that the Court of International Trade has exclusive jurisdiction over challenges to the HMT under § 1581(i)(4), it follows that the Court of Federal Claims lacks jurisdic- tion over the challenges to the HMT currently pending there. See 28 U.S.C. § 1491(b). The plaintiffs in these challenges may invoke § 1631, which authorizes inter-court transfers, when "in the interest of justice," to cure want of jurisdiction. See also § 610 (as used in Title 28, the term "court" includes the Court of Federal Claims and the CIT) 107a Il. Two Terms ago, in JBM, this Court considered the question whether a tax on insurance premiums paid to protect exports against loss violated the Export Clause. Distinguishing case law developed under the Commerce Clause, 517 U.S. at 850-852, and the Import-Export Clause, 517 U.S. at 857-861, the Court held that the Export Clause allows no room for any federal tax, however generally applicable or nondiscriminatory, on goods in export transit. Before this Court's decision in JBM, the Gov- ernment argued that the HMT, even if characterized as a "tax" rather than a "user fee," should survive constitutional review "because it applies without discrimination to exports, imports and domestic commerce alike." Reply Brief for United States 9, n. 2. Recognizing that JBM "rejected an indistinguishable con- tention," the Government now asserts only that HMT is "'a permissible user fee," ibid., a toll within the tolerance of Ex- port Clause precedent. Adhering to the Court's reasoning in IBM, we reject the Government's current position. The HMT bears the indicia of a tax. Congress expressly de- scribed it as "a fax on any port use," 26 U.S.C. § 4461(a) (em- phasis added), and codified the HMT as part of the Internal Revenue Code. In like vein, Congress provided that, for admin- istrative, enforcement, and jurisdictional purposes, the HMT should be treated "as if [it] were a customs duty." §§ 4462(f)(1),(2). However, "we must regard things rather than names," Pace v. Burgess, 92 U.S. at 376, in determining whether an imposition on exports ranks as a tax. The crucial question is whether the HMT is a tax on exports in operation as well as nomenclature or whether, despite the label Congress has put on it, the exaction is instead a bona fide user fee. In arguing that the HMT constitutes a user fee, the Gov- ernment relies on our decisions in United States v. Sperry Corp., 493 U.S. 52, 107 L. Ed. 2d 290, 110 S. Ct. 387 (1989), Massachusetts v. United States, 435 U.S. 444, 55 L. Ed. 2d 403, 98 S. Ct. 1153 (1978), and Evansville-Vanderburgh Air- 108a port Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707, 31 L. Ed. 2d 620, 92 S. Ct. 1349 (1972). In those cases, this Court upheld flat and ad valorem charges as valid user fees. See United States v. Sperry Corp., 493 U.S. at 62 (1 1/2 percent ad valorem fee applied to awards. certified by the Iran-United States Claims Tribunal qualifies as a user fee and is not so ex- cessive as to violate the Takings Clause); Massachusetts v. United States, 435 U.S. at 463-467 (flat federal registration fee imposed annually on all civil aircraft meets genuine user fee standards and, as applied to state-owned aircraft, does not dis- honor State's immunity from federal taxation); Evansville- Vanderburgh Airport Authority, 405 U.S. at 717-721 (flat charge for each passenger enplaning, levied for the mainte- nance of State's airport facilities, does not run afoul of the dor- mant Commerce Clause). Those decisions involved constitu- tional provisions other than the Export Clause, however, and thus do not govern here. IBM plainly stated that the Export Clause's simple, direct, unqualified prohibition on any taxes or duties distinguishes it from other constitutional limitations on governmental taxing authority. The Court there emphasized that the "text of the Ex- port Clause ... expressly prohibits Congress from laying any tax or duty on exports." 517 U.S. at 852; see also id., at 861 ("The Framers sought to alleviate ... concerns [that Northern States would tax exports to the disadvantage of Southern States] by completely denying to Congress the power to tax exports at all."). Accordingly, the Court reasoned in JBM, "our decades- long struggle over the meaning of the nontextual negative command of the dormant Commerce Clause does not lead to the conclusion that our interpretation of the textual command of the Export Clause is equally fluid." 517 U.S. at 851; see also 517 U.S. at 857 ("We have good reason to hesitate before adopting the analysis of our recent Import-Export Clause cases into our Export Clause jurisprudence. ... Meaningful textual differences exist [between the two Clauses] and should not be overlooked."). In Sperry, moreover, we noted that the Takings 109a Clause imposes fewer constraints on user fees than does the dormant Commerce Clause. See 493 U.S. at 61, n. 7 (analysis under Takings Clause is less "exacting" than under the dormant Commerce Clause). A fortiori, therefore, the Takings Clause is less restrictive than the Export Clause. The guiding precedent for determining what constitutes a bona fide user fee in the Export Clause context remains our time-tested decision in Pace. Pace involved a federal excise tax on tobacco. Congress provided that the tax would not apply to tobacco intended for export. To prevent fraud, however, Con- gress required that tobacco the manufacturer planned to export Carry a stamp indicating that intention. Each stamp cost 25 cents (later 10 cents) per package of tobacco. Congress did not limit the quantity or value of the tobacco packaged for export or the size of the stamped package; "these were unlimited, ex- cept by the description of the exporter or the convenience of handling." 92 U.S. at 375. The Court upheld the charge, concluding that it was "in no sense a duty on exportation," but rather "compensation given for services [in fact] rendered." /bid. In so ruling, the Court emphasized two characteristics of the charge: It "bore no pro- portion whatever to the quantity or value of the package on which [the stamp] was affixed"; and the fee was not excessive, taking into account the cost of arrangements needed both "to give to the exporter the benefit of exemption from taxation, and ... to secure ... against the perpetration of fraud." /bid. Pace establishes that, under the Export Clause, the connec- tion between a service the Government renders and the com- pensation it receives for that service must be closer than is pre- sent here. Unlike the stamp charge in Pace, the HMT is deter- mined entirely on an ad valorem basis. The value of export cargo, however, does not correlate reliably with the federal harbor services used or usable by the exporter. As the Federal Circuit noted, the extent and manner of port use depend on fav- tors such as the size and tonnage of a vessel, the length of time 110a it spends in port, and the services it requires, for instance, har- bor dredging. See 114 F.3d at 1572. In sum, if we are "to guard against ... the imposition of a [tax] under the pretext of fixing a fee," Pace v. Burgess, 92 U.S. at 376, and resist erosion of the Court's decision in /BM, we must hold that the HMT violates the Export Clause as ap- plied to exports. This does not mean that exporters are exempt from any and all user fees designed to defray the cost of harbor development and maintenance. It does mean, however, that such a fee must fairly match the exporters' use of port services and facilities. * Ok For the foregoing reasons, the judgment of the Court of Appeals for the Federal Circuit is Affirmed. lila UNITED STATES SHOE CORPORATION, Plaintiff, V. THE UNITED STATES, Defendant. Court No. 94-11-00668 UNITED STATES COURT OF INTERNATIONAL TRADE 22 CLT. 613; 1998 Ct. Intl. Trade LEXTS 76; SLIP OP. 98-88 June 26, 1998, Dated DISPCSITION: Slip Op. 96-32 readopted as the opinion of the court on the issue of interest. JUDGES: BEFORE: HON. JANE A. RESTANI, JUDGE. OPINION BY: JANE A. RESTANI 112a OPINION: JUDGMENT Upon consideration of Plaintiff's Motion for an Order Set- tling Interest and Costs, defendant's response thereto, and all other proceedings had herein; and WHEREAS, a three-judge panel of this Court entered a judgment for plaintiff on December 4, 1995, declaring the Har- bor Maintenance Tax as imposed upon merchandise exported from the United States to be unconstitutional, enjoining the United States Customs Service from the assessment and collec- tion of the Harbor Maintenance Tax in connection with mer- chandise exported from the United States, and awarding plain- tiff a money judgment in the amount of $8,281.87, together with interest and costs as provided by law; and WHEREAS this Court determined in Slip Op. 96-32 (Feb- ruary 7, 1996) that plaintiff is entitled to interest on the money judgment awarded in this case, pursuant to 28 U.S.C. § 2411; and WHEREAS at the time the Court issued Slip Op. 96-32, the Government already had noticed an appeal of this case on Feb- ruary 1, 1996, and Slip Op. 96-32 specifically notes that "notice of appeal has been filed and the court lacks jurisdiction to alter the judgment;" and WHEREAS the December 4, 1995 judgment of the Court in this case was affirmed by the United States Court of Appeals for the Federal Circuit on June 3, 1997, in United States Shoe Corp. v. United States, 114 F.3d 1564 (Fed. Cir. 1997); and WHEREAS the decision of the United States Court of Ap- peals for the Federal Circuit in United States Shoe Corp. v. United States was affirmed by the Supreme Court of the United States on March 31, 1998, in United States v. United States 113a Shoe Corp., 140 L. Ed. 2d 453, 118 S. Ct. 1290 (1988), which decision is now final; and WHEREAS the stay of execution of the money judgment awarded to plaintiff and the effect of the declaratory and injunctive relief, ordered by the Court on December 4, 1995, by its terms automatically dissolved upon "the conclusion of any appellate proceedings"; and WHEREAS defendant expressly reserves any right remain- ing to appeal the award of interest or any costs in this case; WHEREAS, the court has previously determined that costs shall be awarded as provided by law, the court has discretion to award costs, and plaintiff pursued diligently this test case of minor principal value; it is hereby (1) ORDERED that further briefing is not required and Slip Op. 96-32 is hereby readopted as the opinion of the court on the issue of interest. (2) ORDERED that defendant pay plaintiff the principal amount owing of $ 8,281.87 within 60 days hereof; (3) ORDERED that defendant pay plaintiff $ 403.63 in costs within 60 days hereof; (4) ORDERED that defendant pay plaintiff interest on the aforementioned $ 8,821.87 principal, calculated under 28 U.S.C. § 2411, and that the payment obligation is stayed until 30 days after the time for appeal expires or appellate proceed- ings are complete. Jane A. Restani JUDGE Dated: New York, New York This 26th day of June, 1998. 114a UNITED STATES SHOE CORPORATION, Plaintiff- Appellee, V. UNITED STATES, Defendant-Appellant. 98-1574 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 2002 U.S. App. LEXIS 23176 October 22, 2002, Decided October 22, 2002, Filed PRIOR HISTORY: United States Shoe Corp. v. United States, 296 F.3d 1378, 2002 U.S. App. LEXIS 14776 (Fed. Cir. 2002) OPINION: ORDER A petition for rehearing en banc having been filed by the APPELLEE, and the response thereto having been invited by the court and filed by the APPELLANT *, and the matter hav- ing first been referred as a petition for rehearing to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service, 115a UPON CONSIDERATION THEREOF, it is ORDERED that the petition for rehearing be, and the same hereby is, DENIED and it is further ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED. The mandate of the court will issue on October 29, 2002. * Arbon Steel & Service Co., Inc. filed an amicus cu- riae brief. Dated: October 22, 2002 116a INTERNATIONAL BUSINESS MACHINES CORPORATION, Plaintiff- Appellee, V. UNITED STATES, Defendant-Appellant. 98-1590 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 201 F.3d 1367; 2000 U.S. App. LEXIS 681; 2000-1 U.S. Tax Cas. (CCH) P70,134; 85 A.F.T.R.2d (RIA) 518 January 19, 2000, Decided SUBSEQUENT HISTORY: As Corrected February 2, 2000. As Amended May 8, 2000. Rehearing and Rehearing En Banc Denied May 31, 2000, Reported at: 2000 U.S. App. LEXIS 15299. Court Correc- tion of June 9, 2000 Received after F. 3d Cite Availability. Reported at: 2000 U.S. App. LEXIS 22370. Certiorari De- nied February 20, 2001, Reported at: 200] U.S. LEXIS 1685. PRIOR HISTORY: Appealed from: U.S. Court of International Trade. Judge Jane A. Restani. 117a DISPOSITION: REVERSED. COUNSEL: William D. Outman, II, Baker & McKenzie, of Washing- ton, DC, argued for plaintiff-appellee. With him on the brief were Kevin M. O'Brien, Teresa A. Gleason, and Michael E. Murphy. Lara Levinson, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant-appellant. With her on the brief were David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Deputy Di- rector, and Todd M. Hughes, Attorney. Of counsel on the brief was Richard McManus, Office of the Chief Counsel, United States Customs Service, of Washington, DC. Patrick D. Gill, Rode & Qualey, of New York, New York, for amicus curiae Capital-Mercury Shirt Corp. Melvin S. Schwechter, LeBoeuf, Lamb, Greene & MacRae, L.L.P., of Washington, DC, for amicus curiae Rapid Industrial Plas- tics Co. Inc. Steven H. Becker, Coudert Brothers, of New York, New York, for amicus curiae Alfred C. Toepfer In- ternational, Inc. Peter Jay Baskin, Sharretts, Paley, Carter & Blauvelt, P.C., of New York, New York, for amicus [**2] curiae Bunge Corporation. Steven P. Florsheim, Grunfeld, Desiderio Leibowitz & Silverman LLP, of New York, New York for amicus curiae Mondial International Corp. Mun- ford Page Hall, II, Dorsey & Whitney, LLP, of Washington, DC, for amicus curiae New Holland North America, Inc. Barry E. Cohen, Crowell & Moring, LLP, of Washington, DC for amicus curiae Elliott Turbomachinery Company. Brian S. Goldstein, Graham & James, LLP, of New York, New York, for amici curiae AgrEvo USA Company and Nor-Am Chemical Company. Gilbert Lee Sandler, Sandler, Travis & Rosenberg, P.A., of Miami, Florida, for amicus 118a curiae Oshkosh B'Gosh, Inc. James S. O'Kelly, Barnes, Richardson & Colburn, of New York, New York, for ami- cus curiae Firmenich, Inc.; of counsel was Christopher E. Pey. Mark Stuart Zolno, Katten, Muchin & Zavis, of Chi- cago, Illinois, for amicus curiae Perseco Asia-Pacific, L.P. Leslie Alan Glick, Porter, Wright, Morris & Arthur, of Washington, DC, for amici curiae CombiBloc, Inc., Carter- Wallace, Inc., Allied Mineral, Inc., Techneglas, Inc., and Diehl, Inc. Jerry P. Wiskin, Simons & Wiskin, of New York, New York, for amicus curiae Cam USA, Inc. JUDGES: Before PLAGER, CLEVENGER, and RADER, Circuit Judges. OPINION BY: PLAGER OPINION: — PLAGER, Circuit Judge. The United States ("the Government") appeals a judgment of the United States Court of International Trade, which awarded interest on refunds of the Harbor Maintenance Tax ("HMT"). The Supreme Court had earlier held that the HMT, as applied to exports, violates the Export Clause of the United States Constitution, and cannot be lawfully collected.’ This ' United States v. United States Shoe Corp., 523 U.S. 360, 118 S. Ct. 1290, 140 L. Ed. 2d 453 (1998). 119a case was filed to test whether the Government is obligated by law to pay interest on these refunds. The Court of International Trade held that appellee may re- cover interest on refunds of HMT payments resulting from the Supreme Court's decision.” The trial court adjudged that 28 U.S.C. § 2411, which provides for post-payment interest on tax refunds, applies.’ We conclude that neither § 2411 nor any other statutory provision provides the necessary authorization for an award of interest to appellee on its HMT refunds. The judgment of the trial court is reversed. BACKGROUND The HMT, enacted by Congress as part of the Water Re- sources Development Act of 1986, 26 U.S.C. § 4461-62 (1994), is an ad valorem tax imposed on shipments of commer- cial cargo which pass through the country's ports. Several thou- sand exporters challenged the constitutionality of the HMT as applied to exporters. In a test case, a three-judge panel of the Court of International Trade held that the HMT violates the Export Clause of the United States Constitution. See United States Shoe Corp. v. United States, 19 C.1.T. 1284, 907 F. Supp. 408 (1995). This decision was affirmed by a five-judge panel of this court, see United States Shoe Corp. v. United States, 114 F.3d 1564 (Fed. Cir. 1997), which decision was af- firmed by the Supreme Court, see United States v. United States Shoe Corp., 523 U.S. 360, 118 S. Ct. 1290, 140 L. Ed. 2d 453 (1998). In the course of the initial litigation before the Court of In- ternational Trade, that court issued an Order declaring that the * IBM v. United States, 1998 Ct. Intl. Trade LEXIS 73, No. 94- 10-00625, 1998 WL 325156 (Ct. Int'l Trade June 17, 1998). > All references to the United States Code are to the 1994 edition unless otherwise indicated. — 120a plaintiff was entitled to a refund "together with interest and costs as provided by law." United States Shoe Corp. v. United States, 19 C.I.T. 1413, 924 F. Supp. 1191, 1191 (Ct. Int'l Trade 1995). Subsequently the court determined that the question of interest on the refund judgment "is not a matter without contro- versy and it cannot be resolved as a simple clerical matter." U.S. Shoe, 20 Ct. Int'l Trade 206, 207 (1996). The Court of In- ternational Trade called for briefing on the issue of whether the exporters may recover interest. However, before the court is- sued its decision on the question of plaintiff's entitlement to interest, the Government filed a notice of appeal from the court's earlier decision on the constitutional issue. Thus, the interest issue was not addressed during the appellate proceed- ings that followed. While the appeal of the constitutional issue was proceeding, the Court of International Trade decided the question of whether the exporters were entitled to interest on their refunds. The court acknowledged that the United States is immune from paying interest absent express congressional consent, citing Li- brary of Congress v. Shaw, 478 U.S. 310, 314, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986). See U.S. Shoe, 20 Ct. Int'l Trade at 207. The court found the necessary express authorization with regard to HMT refunds in 28 U.S.C. § 2411, which provides that "in any judgment of any court rendered ( ... against the United States ... ) for any overpayment in respect of any inter- nal-revenue tax, interest shall be allowed at the overpayment rate established under [26 U.S.C. § 6621] upon the amount of the overpayment ...." U.S. Shoe, 20 Ct. Int'l Trade at 207-08. After the Supreme Court affirmed the unconstitutionality of the HMT as applied to exports, the Court of International Trade designated this case as a companion test case to U.S. Shoe to give the Government the opportunity to appeal the award of interest. See JBM, 1998 WL 325156, at *1. The Court of Inter- national Trade deemed filed in this case the briefs concerning the issue of interest filed in the U.S. Shoe proceedings as well 12la as its 1996 U.S. Shoe opinion awarding interest. See id. This appeal followed. DISCUSSION The issue of whether Congress has expressly authorized in- terest on HMT refunds is one of statutory interpretation, a ques- tion of law that we review independently and without deference to the trial court. See Medline Indus., Inc. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995) (questions of law subject to full and independent review). The oft-repeated general princi- ple is that the United States is immune to claims for interest unless Congress has waived immunity by expressly consenting to an award of interest. See Shaw, 478 U.S. at 314. Congres- sional consent must be unambiguous. See id. at 318. The HMT statutory provisions are relatively brief, and are codified in two sections, numbered 4461 and 4462, as "Sub- chapter A--Harbor Maintenance Tax" in Chapter 36-Certain Other Excise Taxes, as part of Title 26-Internal Revenue Code. Section 4461 imposes the tax, and section 4462 provides definitions and special rules. Nothing in Subchapter A expressly addresses the question of whether in a refund of taxes paid thereunder, the payor is entitled to interest on the refund. The only provisions of Subchapter A that bear on the question are found in two paragraphs in subsection 4462(f), entitled "Extension of provisions of law applicable to customs duty." Paragraph (1) of subsection (f) states: "Except to the extent otherwise provided in regulations, all administrative and en- forcement provisions of customs laws and regulations shall ap- ply in respect of the tax imposed by this subchapter ...." Para- graph (3) states: "The tax imposed by this subchapter shall not be treated as a tax for purposes of subtitle F or any other provi- sion of law relating to the administration and enforcement of internal revenue taxes." (Subtitle F of Title 26 deals with the procedure and administration of the internal revenue system.) 122a It appears abundantly clear from these provisions that, even though the HMT is codified as an excise tax and is part of the Internal Revenue Code ("IRC"), Congress intended the admini- stration and enforcement of the tax to be treated as if the tax was a customs duty, and not a tax under the IRC. Because the statutory provisions which established the HMT do not explicitly authorize interest payments on refunds of the tax, if Congress authorized such payments the authoriz- ing statute must be found elsewhere. And if such a statute is found, we must determine whether Congress by the provisions of subsection (f) quoted above has precluded its application to an HMT refund. We have been urged to look at several possible sources for the authorization; we shall examine each in turn. 1. Subtitle F of Title 26, the Internal Revenue Code, in § 661 1(a), states that "interest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at the over- payment rate established under section 6621." This provision of the Code cannot apply because the HMT statute, § 4462(f)(3), specifically exempts the HMT from all provisions ‘in subtitle F of Title 26: "the [HMT tax] shall not be treated as a tax for pur- poses of subtitle F or any other provision of law relating to the administration and enforcement of internal revenue taxes." Thus, any Congressional authorization of interest payments on HMT refunds must be found outside of subtitle F. The Court of International Trade found the necessary ex- press authorization for interest payments in another Title of the United States Code, namely Title 28, which is entitled "Judici- ary and Judicial Procedure." 28 U.S.C. § 2411 provides, in relevant part, that "in any judgment of any court rendered ( ... against the United States ... ) for any overpayment in respect of any internal-revenue tax, interest shall be allowed at the over- payment rate established under (26 U.S.C. § 6621] upon the amount of the overpayment ...." 123a In its analysis of § 2411, the Court of International Trade first determined that the HMT is an internal revenue tax within the meaning of § 2411. See U.S. Shoe, 20 Ct. Int'l Trade at 208. The court then considered whether the two paragraphs of the HMT statute quoted above precluded application of § 2411 to HMT refunds. The court concluded that the HMT refund proc- ess would not constitute either "administration" or "enforce- ment" of the HMT, and that the HMT statute did not exempt HMT refunds from application of § 2411. See U.S. Shoe, 20 Ct. Int'l Trade at 208-09. For purposes of analysis, we accept the argument of appel- lee and the holding of the Court of International Trade that payment of the HMT by exporters is an "internal revenue tax" within the meaning of § 2411. Because Congress codified the HMT as part of Title 26 of the United States Code, entitled "In- ternal Revenue Code," we may reasonably conclude that Con- gress considered the HMT to be an internal revenue tax. Fur- thermore, while it may be true that the constitutionality of the HMT was challenged because the HMT taxed goods exported out of the United States, the HMT is clearly derived from inter- nal sources--the U.S. exporter--rather than external sources--the foreign recipient; HMT revenues were collected in the United States from domestic companies based on their use of ports and harbors in this country. Thus both the structure and the content of the HMT point toward it being an internal revenue tax, and thus entitled on refund to the interest award provided under § 2411. Furthermore, we accept appellee's contention that the lan- guage of § 2411 is broad enough, and has been so construed, as to cover the case before us. The question, then, is whether the express provisions of the HMT statute preclude application of § 2411 to refunds of the tax. As previously noted, the HMT stat- ute in subsection (f) of § 4462 directs that "the [HMT] shall not be treated as a tax for purposes of subtitle F or any other provi- sion of law relating to the administration and enforcement of internal revenue taxes." 26 U.S.C. § 4462(f(3) (emphasis 124a added). If the refund process for the unconstitutionally-levied HMT is not related to the "administration and enforcement" of an internal revenue tax, then § 2411 of Title 28 would appear to be ample authorization for interest to be paid on the refund. If, however, the refund process for this internal revenue tax relates to its administration and enforcement, the plain language of the HMT statute would bar the use of § 2411 as a statutory basis for an award of interest on HMT refunds. This is a question of statutory interpretation. We begin with the language of the statute itself. If that language is clear and unambiguous, then it controls, and we need not--indeed we may not--go further. See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 136 L. Ed. 2d 808, 117 S. Ct. 843 (1997) ("Our first step in interpreting a statute is to determine whether the lan- guage at issue has a plain and unambiguous meaning with re- gard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statu- tory scheme is coherent and consistent." (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989))); Muwwakkil v. Office of Personnel Management, 18 F.3d 921, 924 (Fed. Cir. 1994) ("When statu- tory interpretation is at issue, the plain and unambiguous mean- ing of a statute prevails."). To determine whether the statutory language is plain and unambiguous, we look at "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson, 519 U.S. at 341. Because the HMT statute does not define "administration and enforcement," we assume that the terms have their ordinary meaning, for which we may consult a dictionary. See Best Power Tech. Sales Corp. v. Austin, 984 F.2d 1172, -1177 (Fed. Cir. 1993) ("It is a basic principle of statutory interpretation ... that undefined terms in a statute are deemed to have their ordi- narily understood meaning. For that meaning, we look to the dictionary.") (citations omitted). Black's Law Dictionary de- fines "administer" as "to manage or conduct." Black's Law Dic- 125a tionary 44 (6th ed. 1990). "Enforce" is defined as "to put into execution; to cause to take effect; to make effective; as, to en- force a particular law, a writ, a judgment, or the collection of a debt or fine; to compel obedience to." /d. at 528. Applying these definitions to the HMT statute, we read "administration and enforcement of internal revenue taxes" broadly to encompass not only management of the tax system, including the assessment and collection of tax payments and issuance of refunds and interest on those refunds by the agency responsible, but also enforcement of the tax laws, including the obtaining and enforcement of judgments against both taxpayers and the United States. Nothing in the language of the statute limits "administration and enforcement" to the narrow interpre- tation applied by the Court of International Trade, i.e., "matters of routine administration and enforcement by an agency." U.S. Shoe, 20 Ct. Int'l Trade at 208. Examination of the phrase "administration and enforce- ment" in the context of 26 U.S.C. § 4462(f)(3) supports this broader interpretation. Again, that paragraph of the statute ex- empts the HMT from "subtitle F or any other provision of law relating to the administration and enforcement of internal reve- nue taxes." Subtitle F of the Internal Revenue Code is entitled "Procedure and Administration." In addition to chapters ad- dressing agency responsibilities such as "Assessment" (chapter 63), "Collection" (chapter 64), and "Abatements, credits, and refunds" (chapter 65), subtitle F includes a chapter on "Judicial proceedings" (chapter 76). That chapter includes provisions regarding civil actions by the United States (subchapter A), proceedings by taxpayers and third parties (subchapter B), the Tax Court (subchapter C), and court review of Tax Court deci- sions (subchapter D). A fair reading of the phrase "subtitle F or any other provi- sion of law" as used by Congress in the HMT statute would thus include both the administrative and judicial processes as activities that relate to the "administration and enforcement" of 126a taxes. Furthermore, interest on a tax refund would seem to be expressly included in those activities, since subtitle F itself con- tains a provision for interest on tax refunds, 26 U.S.C. § 6611(a). Accordingly, we are forced to conclude that Congress intended the phrase "administration and enforcement" to en- compass not only agency action, but also judicial enforcement of the tax laws, including a judicial award of interest on tax re- funds. This interpretation is consistent with the other paragraph of subsection (f) of the HMT statute, § 4462(f)(1), quoted above, which provides that "all administrative and enforcement provi- sions of customs laws and regulations shall apply in respect of the [HMT] as if such tax were a customs duty." The Tariff Act of 1930, codified in the United States Code in Chapter 4 of Ti- tle 19, entitled "Customs Duties," provides for the administra- tion and enforcement of customs duties in Subtitle III, entitled "Administrative Provisions." As discussed below, that subtitle includes a provision for interest on refunds of customs duties. See 19 U.S.C. § 1505. Section 4462(f)(3) is complementary to § 4462(f)(1), ie., the administration and enforcement provisions relating to tax laws cannot apply to the HMT, see § 4462(f)(3), because the administration and enforcement provisions of the customs laws do apply to the HMT, see § 4462(f)(1). Accordingly, because an interest provision such as 19 U.S.C. § 1505(c) is an adminis- trative and enforcement provision of the customs laws, the sec- tion of Title 28, § 2411, which provides for interest on tax re- funds, is a "provision of law relating to the administration and enforcement of internal revenue taxes" within the meaning of 26 U.S.C. § 4462(f)(3) and cannot apply to the HMT. Although it is unnecessary to consider the legislative his- tory because the statutory language is clear from the language itself and its context, we note that the legislative history does not contradict the plain meaning of the HMT statute. The Sen- ate Finance Committee report, cited by the Court of Interna- tional Trade, states that it is more appropriate for the Customs 127a Service, rather than the Internal Revenue Service, to collect and administer the HMT because the Customs Service has a strong presence at ports of entry and experience at appraising mer- chandise. See S. Rep. No. 99-228, reprinted in 1986 U.S.C.C.A.N. 6705, 6714. In order to facilitate the administra- tion of the HMT by Customs, the report explains, the statute provides that all administrative and enforcement provisions of the customs law and regulations apply to the HMT as if it were a customs duty. See id. at 6714-15. Though nothing in the legislative history defines the phrase "administration and enforcement," and the report is silent on the issue of whether a provision for interest on refunds relates to administration and enforcement, the legislative history con- firms that § 4462(f)(3) was enacted as a counterpart to § 4462(f)(1) so that the administrative and enforcement provi- sions of only the customs statutes, and not the tax laws, would apply to the HMT. See id. at 6715. As noted above, the admin- istrative provisions of the customs laws include interest provi- sions. Because Congress did not specifically exclude interest provisions from "administrative and enforcement provisions" with respect to § 4462(f)(1), we must conclude that the interest provisions of the cust [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1169%3A01. Public record. Not legal advice.