## Facts

- Swisher International, Inc., an exporter, paid the Harbor Maintenance Tax (HMT) quarterly from 1990 to 1994 on goods exported through seaports.
- In September 1994, Swisher filed an amended quarterly summary report requesting refunds of prior HMT export payments, asserting the Export Clause barred HMT on exports.
- U.S. Customs denied the refund request, asserting the HMT was constitutional.
- Swisher sued in the Court of International Trade (CIT) seeking refunds based on its constitutional challenge.
- The CIT held Customs’ refund denial was not protestable under 19 U.S.C. § 1514(a), treated the case as within residual jurisdiction under 28 U.S.C. § 1581(i), and applied § 1581(i)’s two-year limitation period.
- The CIT dismissed claims for HMT paid more than two years before suit as time-barred, while allowing recovery for payments within the two-year window.
- Swisher appealed, arguing the denial was protestable and that CIT jurisdiction properly arose under 28 U.S.C. § 1581(a).

## Issues

1. Whether Customs’ denial of an HMT refund request premised on a constitutional challenge is a protestable “decision” under 19 U.S.C. § 1514(a).
2. Whether the CIT’s jurisdiction therefore lies under 28 U.S.C. § 1581(a) (protest jurisdiction) rather than 28 U.S.C. § 1581(i) (residual jurisdiction) with its two-year limitation period.

## Decision

- The Federal Circuit held that Customs’ denial of Swisher’s HMT refund request was a protestable decision under 19 U.S.C. § 1514(a).
- The court held the CIT had jurisdiction under 28 U.S.C. § 1581(a), making reliance on § 1581(i) improper.
- The court reversed the CIT’s jurisdictional ruling and the resulting time-bar dismissal of older claims under § 1581(i).
- The case was remanded for further proceedings under the § 1581(a) protest framework.

## Legal Principles

- A Customs decision denying a refund of “charges or exactions” collected by Customs can fall within the protestable decisions covered by 19 U.S.C. § 1514(a).
- When a claim fits within a specific grant of CIT jurisdiction (such as § 1581(a)), the CIT may not proceed under residual jurisdiction in § 1581(i).
- A prior decision finding no protestable decision where no refund request was filed does not control when the exporter filed a refund request and Customs issued an adverse denial.
- If jurisdiction is under § 1581(a), timeliness is governed by the protest process tied to the challenged denial, not by § 1581(i)’s two-year limitation period.

## Conclusion

The Federal Circuit ruled that Customs’ denial of an exporter’s HMT refund request based on a constitutional objection is protestable under § 1514(a), requiring the CIT to proceed under § 1581(a) rather than § 1581(i), and it vacated the CIT’s two-year time bar applied under residual jurisdiction.


Swisher Int'l, Inc. v. United States, 205 F.3d 1358 (Fed. Cir. 2000)