Issue 279, November 15, 2000
Exporters who have already obtained refunds of Harbor Maintenance Fee (HMF) payments based on the U.S. Shoe decision's two-year recovery period, take notice: an expanded refund may be on its way, depending upon when you filed your original case.

A recent appeals court decision agreed that the two-year statute of limitations imposed in the U.S. Shoe decision should be expanded for many exporters because an HMF class action suit was pending in the Court of International Trade (CIT) from October 27, 1994 to May 7, 1996. Stone Container Corp. v. United States, Slip Op. 99-1333, -1334 (Federal Circuit, October 12, 2000). The class action sought to have certified as a class all exporters who had paid the HMF.

In Stone Container, the appeals court found that this class action tolled (or froze) the statute of limitations for all potential members of the class, but only until May 7, 1996, the date on which the class certification was denied. There had been some hope that the court would extend the tolling beyond the May 7, 1996 date based on the argument that the class action decision was still under appeal, but the appeals court rejected this argument. Of course, there is still a chance that the Supreme Court will have a different view on this issue if the parties seek and obtain Supreme Court review.

Assuming the ruling stands, the expanded recoveries periods will vary depending on the filing date of each exporter's CIT case:

Cases commenced between October 27, 1994 and May 7, 1996 (the period during which the class action was pending) - these cases will be treated as if they were filed on the same day as the original class action - that is, on October 27, 1994. Thus, recovery for these cases would extend back two years from that date, or to October 27, 1992.

Cases commenced after May 7, 1996 but before May 7, 1998 - recovery in these cases is based on the following calculation: (1) count the number of days between May 7, 1996 and the filing date of the case; (2) subtract this number of days from 731 days (the two year period); finally, (3) subtract the resulting number of days from October 27, 1994 to arrive at the beginning date for which the exporter is entitled to refunds. No other cases benefit from an expanded recovery.

Earlier this year, the same appeals court ruled in the Swisher case that there was another possible strategy for obtaining additional HMF recovery -- filing CF 350's with Customs seeking HMF refunds, followed by protests if denied. While the Stone Container decision does not directly affect this strategy, it appears to disagree with using the Swisher decision to supplement an earlier, U.S. Shoe-style recovery. Despite this appellate panel's possible disagreement, exporters can take steps to preserve refunds based on the Swisher strategy.

Our contributing writers, Richard H. Abbey and Joel W. Rogers, are partners at Ablondi, Foster, Sobin & Davidow, p.c. at 202-296-3355.

Please note that due to the complex nature of the subject matter, Danzas AEI cannot be responsible for actions taken by the reader in reliance on the information contained herein without prior consultation with Danzas AEI.