Virgin Islands Port Authority v. United States

In the United States Court of Federal Claims No. 13-390 (Filed: January 9, 2018) ********************** VIRGIN ISLANDS PORT AUTHORITY, Plaintiff, U.S. Const. amend. V; illegal exaction; constitutional takings; 48 U.S.C. § 1469c v. (2012); V.I. Code Ann. tit. 29, § 543(12) (2017). THE UNITED STATES, Defendant. ********************** Nycole Alicia Thompson, St. Thomas, U.S. Virgin Islands, for plaintiff, with whom was Geoffrey Eaton, Washington, DC. Elizabeth Anne Speck, United States Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for defendant. OPINION BRUGGINK, Judge. This is a claim by the Virgin Islands Port Authority for return of wharfage and tonnage fees. Plaintiff contends that United States Customs and Border Protection effected an illegal exaction or a Fifth Amendment taking by collecting such fees without remitting them to it as rightful owner. Pending is the government’s motion for summary judgment and plaintiff’s partial cross-motion for summary judgment. The matter is fully briefed, and oral argument was held on December 5, 2017. For the reasons set out herein, we grant the government’s motion for summary judgment and deny plaintiff’s cross-motion. BACKGROUND The United States Virgin Islands (“Virgin Islands”) is a collection of islands that the United States acquired from Denmark in 1917. They are administered as a single territory and share a common government. The Virgin Islands had customs law in place at the time of acquisition by the United States to govern its maritime ports. This conflict has its genesis in a determination of who rightfully collects wharfage and tonnage fees levied at the Virgin Islands ports and what must be done with those fees once collected. Three entities are involved in the dispute: the Virgin Islands Port Authority (“VIPA”), the United States Customs and Border Protection (“CBP”), and the government of the Virgin Islands. The Virgin Islands government created VIPA in 1968 to own and manage “any and all types of air and marine terminals” and “to control the harbors of the Virgin Islands.” V.I. Code Ann. tit. 29, §§ 541(a), 543 (2017). The Virgin Islands established VIPA as “a public corporation and autonomous governmental instrumentality” of the Virgin Islands government. Id. § 541(a). Moreover, the Virgin Islands code provides that VIPA’s “receipts, expenditures, accounts, funds, facilities, and property” are owned by VIPA, not the Virgin Islands government. Id. § 541(e). The Virgin Islands authorized VIPA “to determine, fix, alter, charge, and collect reasonable rates, fees, rentals, ship’s dues and other charges.” Id. § 543(12). VIPA began by collecting the fees and ship dues levied by Virgin Islands law prior to VIPA’s creation and then VIPA changed rates and levied new fees. Id. The fees VIPA collects contribute to paying its expenses. Id. Pursuant to this statutory authority, VIPA sets the rates of wharfage and tonnage fees at the Virgin Islands ports, although, until 2011, it did not collect those fees. That task was performed by CBP. CBP, although originally a unit of the Treasury Department, is now governed by both the Treasury Department and the Department of Homeland Security, ...

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