Amicus Curiae Brief — United States Shoe Corp. v. United States

\} § FILED

No. 02-1221 APR 23 2005

IN THE GUBEK

Supreme Court of the United States

TO ere.

UNITED STATES SHOE CORP.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF OF AMICI CuRIAE AIR PRODUCTS AND CHEMICALS, INC., CLARK

Oi TRADING Company, Daipo STEEL (AMERICA), INC., FEDERAL

SIGNAL CORPORATION, THE GERBER PRODUCTS COMPANY,

THE MELTON Company, Perseco AsiA-PacirFic, L.L.C., ROBERT

BoscH Toot CORPORATION, TENNECO AUTOMOTIVE INC., AND

VARIAN MEDICAL Systems, INC. IN SUPPORT OF THE PETITIONER

ae

cman

Mark S. ZOLNO

Counsel of Record

Davip R. STEpp

MICHAEL E. ROLL

KATTEN MuCcHIN ZAviS ROSENMAN

525 West Monroe Street

Suite 1600

Chicago, Illinois 60661-3693

(312) 902-5200

Counsel for Amici Curiae

180417 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

a

QUESTION PRESENTED

Did the United States violate the Takings Clause of the

U.S. Constitution by retaining interest earned on the money

it exacted from exporters pursuant to the unconstitutional

Harbor Maintenance Tax?

il

TABLE OF CONTENTS

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See GE CE vos 6 6 9 ees

Table of Cited Authorities .....................

Interest Of Ansicd Carame «.. 6 ccicccwauvueewavess

SuUsumery OL ATOMMIEME occ cece ese eewsvcs

PO eee ee er eer peer

A.

The Money Earned as Interest on the HMT

Qualifies as a Property Interest of U.S. Shoe.

See CueuvuseeeoeCPCRa CC HRP HEC C TC GCE OH OE SD Ee HS EE 6

The Unlawful Exaction Constitutes a Per Se

Taking Rather Than a Regulatory Taking. ..

Because the Supreme Court has Ruled the

HMT Unconstitutional, the Court Should

Disregard the Law Authorizing the Collection

of the Fee and Hold that the Retained Interest

Violates the Takings Clause. .............

U.S. Shoe Must Receive Just Compensation

for the Government’s Taking of the Interest

th GAR BIRR Es a. ce cpeee ke ok ees

The Court Should Grant U.S. Shoe’s Petition

for a Writ of Certiorari Because the Federal

Courts of Appeals are Split in Their

Enforcement of the Takings Clause. .......

SC CIIONONE nov hn ee

10

12

14

lil

TABLE OF CITED AUTHORITIES

Page

Cases:

Albrecht v. United States,

329 U.S. 599 (1947) 2... cece eee eee eens 11

Alexander v. Cockrell,

294 F.3d 626 (5th Cir. 2002) .....------e eee 10

Brown vy. Legal Foundation of Washington,

2003 WL 1523550 (U.S. 2003) ......------ 9,11, 12

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998) ......- eee eee reece ee 8

First English Evangelical Lutheran Church

v. Los Angeles,

482 U.S. 304 (1987) ...... cece ee eee reece 10

Norton v. Shelby County,

118 U.S. 425 (1886) ......-- cece rere cence 10

Penn Central Transportation Company

v. City of New York,

438 U.S. 104 (1978) ...... cece cece eee eee 8

Petrick v. Fields,

1996 U.S. App. LEXIS 313338

(10th Cir. 1996) ........-e eee eer ec eeeecees 13

Phillips v. Washington Legal F oundation,

524 U.S. 156 (1998) .....- eee eee rere eee passim

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995) 0... eee eee eee eres 9,10

iv

Cited Authorities

Page

Ruckelhaus v. Monsanto Co.,

ae Ta: SE CE 4h vad ee evtnbana kewnaes 4

Schneider v. California Department of Corrections,

Pie Bie 7, tS 2) | ere 12, 13

Seaboard Air Line Ry. Co. v. United States,

Be Gh ED 5> kvrae dan beoeckeee nena 11

United States Shoe Corporation v. United States,

290 F308 1S TS OR. CH BE) oc cccesennes passim

Washlefske v. Winston,

ree Pe ee | re 13

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

SOP UD SME 8 ho She RA ARCO SES passim

Constitutional and Statutory Provisions:

ok Be FO eee err ere ee 3, 4, 8, 10, 11

rR Soe | Pee eer ere errr eT ree 3

1

INTEREST OF AMICI CURIAE

Air Products and Chemicals, Inc., Clark Oil Trading

Company, Daido Steel (America), Inc., Federal Signal

Corporation, The Gerber Products Company, The Melton

Company, Perseco Asia-Pacific, L.L.C., Robert Bosch Tool

Corporation, Tenneco Automotive Inc., and Varian Medical

Systems, Inc., amici curiae in this appeal, respectfully submit

this brief in support of U.S. Shoe Corporation (“U.S. Shoe”).'

Air Products and Chemicals, Inc. is a Delaware

corporation. It serves customers in technology, energy,

healthcare and industrial markets worldwide with a unique

portfolio of products, services and solutions, providing

atmospheric gases, process and specialty gases, performance

materials and chemical intermediates.

Clark Oil Trading Company is a Missouri general

partnership. It trades, transports and stores petroleum and

petroleum products in various markets.

Daido Steel (America), Inc. is a Delaware corporation.

It is the exclusive sales agent of Daido Steel Co., Ltd. in the

United States. Daido Steel Co., Ltd. is one of the world’s

largest specialty steel producers.

Federal Signal Corporation is a Delaware corporation.

It is a manufacturer and worldwide supplier of safety,

signaling and communications equipment, fire rescue

1. Petitioner has filed a global consent to the submission of

amicus curiae briefs in support of either party, which is on file with

the Clerk. Respondent’s letter consenting to the filing of this brief

accompanies this filing. No counsel for a party authored this brief in

whole or in part, and no person or entity, other than the amici curiae,

its members, or its counsel, made a monetary contribution to the

preparation or submission of this brief.

2

products, street sweeping and vacuum loader vehicles, parking

control equipment, carbide and superhard tipped cutting tools,

precision metal stamping punches and components for plastic

injection molds. |

The Gerber Products Company is a Michigan corporation.

In 1994, it merged with Sandoz Ltd. and is now a part of the

Novartis group of companies. It is one of the world’s leading

baby food and products companies.

The Melton Company is a Texas corporation. It is a leading

U.S. processor of lambskins.

Perseco Asia-Pacific, L.L.C. is a Delaware Limited Liability

Company. It provides purchasing services for packaging

products for the McDonald’s restaurants system.

Robert Bosch Tool Corporation is a Delaware corporation.

It is one of the world’s premier power tool makers.

Tenneco Automotive Inc. is a Delaware corporation. It is

one of the world’s largest designers, manufacturers and

distributors of automotive ride control and emission control

products and systems for the automotive original equipment

market, and the repair and replacement market, or aftermarket.

Finally, Varian Medical Systems, Inc. is a Delaware

Corporation. It is one of the world’s leading manufacturers of

radiotherapy systems.

As significant U.S. exporters who have paid collectively

Harbor Maintenance Taxes in excess of $4.8 million, amici

curiae have an interest in the outcome of this appeal. Amici

curiae agree with the Petitioner that the United States owes

interest on the money it exacted pursuant to the unconstitutional

Harbor Maintenance Tax.

3

SUMMARY OF ARGUMENT

The Fifth Amendment of the U.S. Constitution states that

private property shall not “be taken for public use without

just compensation.” The Federal Circuit, in United States

Shoe Corporation v. United States, 296 F.3d 1378 (2002),

rejected plaintiff’s argument that the government’s refusal

to refund interest on the Harbor Maintenance Tax (“HMT”)

exactions violated the Fifth Amendment, finding that interest

on the refunds was not a private property interest protected

by the Takings Clause. The Federal Circuit stated that the

interest, like the HMT itself, became the property of the

government upon payment and, therefore, was not an

unconstitutional taking.

This Court’s precedent, however, establishes that the

interest earned on monies wrongfully exacted from taxpayers

constituies private property for purposes of the Takings

Clause. The fact that the underlying statute instituting the

HMT was found to be unconstitutional further warrants a

finding of a taking by the government. “Just compensation”

in this case consists, at a minimum, of the income earned by

the government from the interest-bearing account into which

the HMT was deposited. Support also exists for the remedy

of interest on the funds paid by exporters, calculated from

the date of their deposit at the statutory rate for interest on

refunds of taxes and customs duties (see 26 U.S.C. § 6621).

Finally, in addition to the arguments set forth above, the

Court should grant U.S. Shoe’s petition for a writ of certiorari

because of the disagreement among the federal courts of

appeals over this issue.

4

ARGUMENT

A. The Money Earned as Interest on the HMT Qualifies

as a Property Interest of U.S. Shoe.

For the Court to determine that the interest on the HMT

retained by the government is a taking in violation of the Takings

Clause of the Fifth Amendment, it must first be established that

the interest qualifies as a property interest that is constitutionally

protected. See Ruckelhaus v. Monsanto Co., 467 U.S. 986, 1000-

01 (1984).

The Court has established that the earnings of a fund such

as that at issue in U.S. Shoe constitute a property interest for

purposes of the Takings Clause. In Webb 5 Fabulous Pharmacies,

Inc. v. Beckwith, 449 U.S. 155 (1980), a company known as

Eckerd’s agreed to purchase Webb’s Fabulous Pharmacies, Inc.

but discovered at closing that Webb’s debts appeared to be

greater than the purchase price. To protect itself, and as allowed

under Florida statute, Eckerd’s interpleaded Webb’s and Webb’s

creditors and tendered the purchase price to the Florida court.

The clerk of the court charged a fee based on a percentage of

the amount deposited for its services in connection with its

receipt of the money into the registry of the court. The interest

earned on the interpleader fund, which eventually totaled over

$100,000, was not turned over to the receiver and it served as

the basis of the action against Seminole County. The Supreme

Court held that the retention of the interest was a taking which

violated the Takings Clause of the Fifth Amendment.

Like the interest earned on the interpleader fund in Webb 5,

the interest in U.S. Shoe constitutes a property interest.

The Court’s characterization of the Florida court’s refusal to

refund the interest in Webb 5 is instructive:

Neither the Florida Legislature by statute, nor the

Florida courts by judicial decree, may accomplish

5

the result the county seeks simply by recharacterizing

the principal as “public money” because it is held

temporarily t-y the court. The earnings of a fund are

incidents of ownership of the fund itself and are

property just as the fund itself is property. The state

Statute has the practical effect of appropriating for

the county the value of the use of the fund for the

period in which it is held in the registry.

Id. at 164.

The Federal Circuit in U.S. Shoe held that the HMT

payment was not held by the government as a property of

U.S. Shoe, but became the property of the government upon

payment into the Harbor Maintenance Fund. The mere

payment of the taxes into the HMT fund, according to the

court, transformed the HMT paid into the property of the

government, thereby extinguishing the private property

interest of the exporters in the funds. U.S. Shoe, 289 F.3d at

1384. The Court, however, dismissed such an attempt by the

Florida court in Webbs:

[A] State, by ipse dixit, may not transform private

property into public property without compensation,

even for the limited duration of the deposit in court.

This is the very kind of thing that the Taking Clause

of the Fifth Amendment was meant to prevent. That

Clause stands as a shield against the arbitrary use of

governmental power.

Webbs, 449 U.S. at 164.

The Court similarly rejected a state’s appropriation of

earned interest in Phillips vy. Washington Legal Foundation,

524 U.S. 156 (1998). In that case, Texas established a trust

account into which an attorney must deposit client funds for

6

limited periods of time, and the normal interest earned on

the funds was paid to a public foundation that finances legal

services for low-income persons. The Court rejected the

differing treatment of confiscatory regulations and those

regulating property interests. “[A] State may not sidestep the

Takings Clause by disavowing traditional property interests

long recognized under state law.” Jd. at 167. Without deciding

the ultimate issue of whether the retention of the interest

was a taking without just compensation, the Phillips Court

determined that the interest on the deposited legal funds was

the private property of the client for purposes of the Takings

Clause.

The decisions in Webb’s and Phillips clearly establish

that the earned interest at issue in U.S. Shoe constitutes

private property. As in U.S. Shoe, the statutes in each of these

cases required the parties to remit funds to the government

which were in turn held in interest-bearing accounts.

The property interest in U.S. Shoe is even more

compelling than the interests at issue in Webb’s and Phillips

because the underlying statute in U.S. Shoe mandating the

HMT on exportations was found to be unconstitutional. To

withhold the payment of earned interest on HMT funds when

the collection of the tax was deemed unconstitutional, but to

grant the refund of interest when the underlying statute was

lawful (as in Webb’s and Phillips) would be a travesty of

justice rewarding the government for its unconstitutional acts.

The Federal Circuit in U.S. Shoe unconvincingly

distinguished the property interests found in Webb’ and

Phillips from that at bar. Citing Phillips, the court concluded

that “[flor the accrued interest to rise to the level of private

property, the principal must be held in an identified private

account.” U.S. Shoe, 296 F.3d at 1384. The monies deposited

into the Harbor Maintenance Trust Fund, according to the

J

court, were not held by the government as property of the

claimants but, rather, “became the property of the Treasury

upon payment.” Thus, the court held, any interest earned on

the remitted funds also became the property of the

government.

The Federal Circuit’s requirement that the funds be

“held” by the government as property of U.S. Shoe is without

precedent. The Takings Clause protects an interest that is

private property, not one that is held as private property.

The holding of the HMT money by the government as its

own in U.S. Shoe is no different from the holding of the funds

by the state in Webbs. The government in both cases retained

earned interest that it never lawfully possessed. The only

difference between the cases — viz., that the state in Webb’s

laid claim unjustifiably to a temporary property right in the

money, whereas the government in U.S. Shoe laid claim

unjustifiably to a permanent property right in the money — is

plainly without significance. To conclude otherwise would

privilege particularly egregious violations of property rights

over merely wrongful violations of those rights.

It is irrelevant that the export exactions were commingled

in the Harbor Maintenance Trust Fund with the money reaped

from the valid HMT on imports. The statute enacting the

HMT directed that the export fees must be placed in the

Harbor Maintenance Trust Fund, which is a discrete interest-

bearing account. Like the HMT fees, the interest on the taxes

paid is sufficiently identifiable in the fund for purposes of

refunding it to exporters. It is important to note that the

interest at issue in Webb's and Phillips was similarly

commingled with the principal of the corresponding funds

and was not maintained by the state governments in separate

and discrete accounts.

Oe ———- eC crc :SC tC rl er em rls ee : aie ad —s er aaa:

8

B. The Unlawful Exaction Constitutes a Per Se Taking

Rather Than a Regulatory Taking.

The U.S. Supreme Court has recognized two different

categories of takings under the Takings Clause of the Fifth

Amendment, a “per se taking” (also referred to as a “classic

taking”) and a “regulatory taking.” In Eastern Enterprises v.

Apfel, 524 U.S. 498 (1998), the Court described a per se

taking as one in which “the government directly appropriates

private property for its own use,” and a regulatory taking as

one in which the government’s “interference arises from some

public program adjusting the benefits and burdens of

economic life to promote the common good.”

The retention of interest earned by the government

qualifies as a per se taking because the government held the

monies in the Harbor Maintenance Trust Fund for its own

use. The Court has held that the retention of interest is a

per se taking in two other cases with takings similar to that

in U.S. Shoe. See Phillips v. Washington Legal Foundation,

524 U.S. 156 (1998) and Webb’s Fabulous Pharmacies,

Inc. v. Beckwith, 449 U.S. 155 (1980). In contrast, the

government’s appropriation of the interest was not “some

public program adjusting the benefits and burdens of

economic life to promote the common good” and, therefore,

does not qualify as a regulatory taking.

The Supreme Court’s decision in a recent case provides

further compelling support that the retention of the interest

on the money in the Harbor Maintenance Trust Fund was a

2. In determining a “regulatory taking,” the Court considers

three factors: (1) “[t]he economic impact of the regulation on the

claimant”; (2) “the extent to which the regulation has interfered with

distinct investment-backed expectations”; and (3) “the character of

the governmental action.” Penn Central Transportation Company v.

City of New York, 438 U.S. 104, 123-24 (1978).

9

per se taking rather than a regulatory taking. In Brown vy.

Legal Foundation of Washington, 2003 WL 1523550

(U.S. 2003), the Court completed its decision that began

as Phillips v. Washington Legal Foundation, 524 U.S. 156

(1998), concerning the payment of interest earned on clients’

funds while those funds are held in attorneys’ trust (““IOLTA”’)

accounts. In Brown, the Court determined that if the act of

giving the interest to the Washington Legal Foundation was

a taking, then it was a per se taking. The Court reasoned that

since “the interest income generated by funds held in IOLTA

accounts is the ‘private property’ of the owner of the

principal,” transfer of the interest to the Legal Foundation

of Washington constituted a physical taking subject to a per

se anal 'sis. Jd. at *11, quoting Phillips. Accordingly, the

government’s taking of the interest earned on the Harbor

Maintenance Trust Fund is a per se taking that requires just

compensation.

C. Because the Supreme Court has Ruled the HMT

Unconstitutional, the Court Should Disregard the

Law Authorizing the Collection of the Fee and Hold

that the Retained Interest Violates the Takings

Clause.

Prior to the Court finding the HMT unconstitutional, the

government collected the HMT and deposited the funds in

an interest-bearing account. Once this Court struck down the

HMT, the government’s retention of the interest earned

without just compensation from the date that the interest

began accruing violated the Takings Clause. As Justice Scalia

wrote in Reynoldsville Casket Co. v. Hyde, 514 U.S. 749

(1995) (Scalia, J. concurring):

[W]hat a court does with regard to an

unconstitutional law is simply to ignore it. It decides

the case ‘disregarding the [unconstitutional] law,’

10

because a law repugnant to the Constitution

‘is void, and is as no law.’ Thus, if a plaintiff seeks

the return of money taken by the government in

reliance on an unconstitutional tax law, the court

ignores the tax law, finds the taking of the property

therefore wrongful, and provides a remedy.

Id. at 760. See also Norton v. Shelby County, 118 U.S. 425,

442 (1886); First English Evangelical Lutheran Church v.

Los Angeles, 482 U.S. 304, 320 (1987); and Alexander v.

Cockrell, 294 F.3d 626, 630 (Sth Cir. 2002).

Thus, the Federal Circuit’s refusal in U.S. Shoe to

compensate exporters for the interest on the HMT funds is

without merit. The unconstitutional law instituting the HMT

was void from the moment of its enactment, and the

government should have ignored the law from that point

for purposes of determining just compensation for the

taxpayers. The Federal Circuit’s failure to recognize the

interest as U.S. Shoe’s property and authorize its refund

reveals the court’s great deference to the unconstitutional

law itself. The court should have, instead, treated the HMT

as a tax that never existed and acknowledged that U.S. Shoe

never relinquished its property right in the HMT funds

remitted, or the interest on the funds.

D. U.S. Shoe Must Receive Just Compensation for the

Government’s Taking of the Interest on the HMT.

The Takings Clause of the Fifth Amendment requires

that “private property [must not] be taken for public use

without just compensation.” U.S. Const. amend. V. Thus, if

the Court finds that the interest on the HMT qualifies as a

property interest that has been taken unconstitutionally by

the government, the government must provide “just

compensation” for the taking.

1]

The Court has routinely found that when there is a

taking under the Fifth Amendment, the plaintiff must be

compensated beyond the principal amount that was taken by

the government. See, e.g., Albrecht v. United States, 329 U.S.

599 (1947) “[W]here payment of that fair market value is

deferred, it has been heid that something more than fair

market value is required to make the property owner whole,

to afford him ‘just compensation’.” Jd. at 602. The term “Just

compensation” was interpreted by the Court in Webb S, supra,

to equal the actual interest earned on monies that were

unlawfully taken and held by the government. In the case of

U.S. Shoe, the government deposited the HMT into an

interest-bearing account and tens of millions of dollars have

been earned on the funds to date. The government should

not be allowed to retain the profits earned on a tax that was

unconstitutionally imposed and coercively collected.

A compelling argument can be made that, to make U.S.

Shoe “whole,” the government must refund interest for the

period extending from the date that HMT was collected to

the date of refund. The Federal Circuit in U.S. Shoe

acknowledged: “[t}he principle that the ‘just compensation’

language includes the payment of interest from the time of

the taking is long standing.” (citing Seaboard Air Line Ry.

Co. v. United States, 261 U.S. 299, 306 (1923)). Regardless

of the method employed to calculate interest in this Case, it

is incontrovertible that the government must make the

plaintiff whole by refunding interest on the HMT funds that

were unlawfully exacted.

The Court’s refusal to refund the interest earned on the

IOLTA trust accounts in Brown, supra, does not dictate the

result in this case. In Brown, the Court ruled that the plaintiffs

were not deprived of “just compensation” because such

comipensation would amount to nothing after the costs of

12

paying it had been expended.’ Clearly, because the actual

interest earned on the HMT far exceeds the administrative

costs of refunding that money, U.S. Shoe is governed by

Webb's rather than by Brown. Accordingly, the government

took the interest earned on the HMT collected from U.S. Shoe

without paying the company just compensation.

E. The Court Should Grant U.S. Shoe’s Petition for a Writ

of Certiorari Because the Federal Courts of Appeals are

Split in Their Enforcement of the Takings Clause.

The circuit courts have differed in their interpretation of

the Supreme Court’s decisions in Web’''s and Phillips when

considering whether prisoners are e: titled to the interest

earned on trust accounts into which their personal funds are

deposited. The Ninth Circuit has found a property interest in

the interest earned by prisoners that was unconstitutionally

taken by the government. The Fourth and Tenth Circuits,

however, have reached the opposite conclusion.

In Schneider v. California Department of Corrections,

151 F.3d 1194 (9th Cir. 1998), the Ninth Circuit considered

the constitutionality of the State of California’s refusal to

refund to prisoners the interest earned on personal monies

deposited into a trust fund during their incarceration. Relying

specifically on Webb's and Phillips, the court held that the

inmates “possess a constitutionally recognizable property

interest that triggers Takings Clause scrutiny.” Jd. at 1201.

The Fourth Circuit specifically acknowledged its

divergence from the Ninth Circuit in Schneider when it

refused, for purposes of the Takings Clause, to recognize as

3. In Brown, the interest earned on the IOLTA funds attributable

to a client was such a nominal amount that the administrative cost of

refunding the interest exceeded any interest earned.

13

private property interest earned on prison inmate accounts.

In Washlefske v. Winston, 234 F.3d 179 (4th Cir. 2000), the

appeals court found that the interest at issue was not a private

property interest at common law but, instead, was an interest

created by statute. “His property interest was that given by

statute, and the State never took from him what was created

by statute. Therefore, there was not a taking of private

property as addressed in the Fifth Amendment.” /d. at 186.

The Tenth Circuit similarly rejected plaintiff's claim of

a constitutionally protected property interest under the

Takings Clause witiu respect to interest on prison inmate

funds. “[B]ecause neither Oklahoma state law nor any other

‘independent source’ provide Mr. Petrick a constitutionally

protected property interest in interest earned on funds in

his draw or mandatory savings accounts, his claim must

fail.” Petrick v. Fields, 1996 U.S. App. LEXIS 313338, at 7

(10th Cir. 1996).

Although U.S. Shoe’s petition does not present a question

identical to the issue regarding which the circuits are split,

the resolution of the question presented by U.S. Shoe would

resolve the disagreement among the courts of appeals.

For this reason, the Court should agree to hear U.S. Shoe.

The Ninth Circuit’s finding of a constitutionally protected

property interest in Schneider is the holding most in accord

with the Supreme Court’s decisions in Webb's and Phillips.

The Fourth and Tenth Circuits’ findings that state law limited

the plaintiffs’ property interest in the income generated from

the prison inmate funds directly contradicts the Supreme

Court’s refusal to allow a state to circumvent the Takings

Clause “by recharacterizing the principal as ‘public money.’”

Webbs, 449 U.S. at 164.

14

CONCLUSION

For the reasons stated above, amici curiae, Air Products

and Chemicals, Inc., Clark Oil Trading Company, Daido Steel

(America), Inc., Federal Signal Corporation, The Gerber

Products Company, The Melton Company, Perseco Asia-

Pacific, L.L.C., Robert Bosch Tool Corporation, Tenneco

Automotive Inc., and Varian Medical Systems, Inc.

respectfully request that the Court reverse the lower court’s

judgment that the exporters which deposited HMT, found to

be unconstitutional by the Court, are not entitled to interest

on the HMT refunds.

Respectfully submitted,

Mark S. ZOLNO

Counsel of Record

Dav R. STEPP

MICHAEL E. ROLL

KATTEN MUuCHIN ZAVIS ROSENMAN

525 West Monroe Street

Suite 1600

Chicago, Illinois 60661-3693

(312) 902-5200

Counsel for Amici Curiae