from the United States Court of Federal Claims in No.
1:13-cv-00390-EGB, Senior Judge Eric G. Bruggink.
Geoffrey P. Eaton, Winston & Strawn LLP, Washington, DC,
argued for plaintiff-appellant.
Elizabeth Anne Speck, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by Joseph
H. Hunt, Claudia Burke, Robert Edward Kirschman, Jr.
Dyk, Mayer, and Clevenger, Circuit Judges.
Virgin Islands Port Authority ("VIPA") appeals from
the grant of the United States' motion for summary
judgment in the U.S. Court of Federal Claims ("Claims
Court"). The Claims Court rejected VIPA's claim that
the collection of wharfage and tonnage fees by the U.S.
Customs and Border Protection ("Customs")
constituted an illegal exaction. We affirm.
dispute between VIPA and the United States centers on the
question of whether certain fees were lawfully collected by
Customs from users of ports in the U.S. Virgin Islands
("Virgin Islands"). The particular fees at issue
are wharfage fees, "the charge assessed for the service
or use of the wharf," and tonnage fees, "the fee
charged a vessel for entering and using a port of the U.S.
Virgin Islands." J.A. 11 & n.1. While Customs is
required under statute to collect customs duties,
see 48 U.S.C. §§ 1406h, 1406i, and 1642a,
the government abandoned reliance on those statutes below as
authorizing collection of the disputed fees.
parties agree that the statutory source, if any, of
Customs' authorization to collect the disputed fees is 48
U.S.C. § 1469c, which provides in pertinent part:
To the extent practicable, services, facilities, and
equipment of agencies and instrumentalities of the United
States Government may be made available, on a reimbursable
basis, to the governments of the territories and possessions
of the United States . . . .
Claims Court has detailed the history between Customs and the
Virgin Islands, so we focus only on the particularly salient
portions. The Virgin Islands is a territory of the United
States that can set and receive proceeds from duties, and
VIPA is "a public corporation and autonomous
governmental instrumentality" of the Virgin Islands'
government. V.I. Code Ann. tit. 29, § 541(a). VIPA is
authorized to, inter alia, "determine, fix,
alter, charge, and collect reasonable rates, fees, rentals,
ship's dues and other charges." Id. §
543(12). Since its creation in 1968, VIPA has set wharfage
and tonnage fees in its Marine Tariff Schedule.
collected the wharfage and tonnage fees from 1969 to 2011,
deducted the costs it incurred from providing its services,
and remitted any remaining funds to the Virgin Islands
Deposit Fund, which the Virgin Islands controls. The funds
were then transferred to VIPA. The source of authority for
Customs' collection of the fees before 1994 is unclear.
1994, the Virgin Islands and Customs entered into a
memorandum of agreement ("1994 MOA"), whereby the
parties agreed to "the methodology for determining the
costs chargeable to [the Virgin Islands] . . . for operating
various [Customs] activities in and for the U.S. Virgin
Islands." J.A. 345. The 1994 MOA "identif[ied]
those activities that are reimbursable," which included
Customs' collection of tonnage and wharfage fees from
cargo being imported and exported. J.A. 345, 347. Customs
further agreed to report on the collection of these fees to
the Virgin Islands. The 1994 MOA also included provisions for
amending or revoking the agreement. See J.A. 353
("Any change . . . shall be initiated by the requesting
party in a written statement setting forth the exact nature
and reason for the change."); J.A. 354 ("This MOA
may be revoked by either party upon providing written notice
to the other party 180 days prior to the proposed revocation
date."). One of the statutes cited in the agreement for
Customs' authority to enter into the 1994 MOA was 48
U.S.C. § 1469c.
current dispute arose from Customs' increasing collection
costs, which outpaced the collection of the disputed fees
starting in 2004. This left VIPA without any proceeds from
the disputed fees. In 2006, VIPA removed the instruction in
its Marine Tariff Schedule that users should pay the disputed
fees to Customs. But Customs continued to collect the fees.
In 2007, VIPA sent a letter, approved by the Virgin
Islands' governor, "appealing to [Customs] so that
[VIPA] can start to collect" the disputed fees. J.A.
371. Customs "respectfully denie[d] VIPA's
request" based on Customs' position that 48 U.S.C.
§§ 1406h, 1406i, and 1642a, required it to collect
the disputed fees as customs duties-a position the government
abandoned below. J.A. 375-77. Following a series of letters
and meetings between VIPA, the Virgin Islands, and Customs,
VIPA sent ...