Virgin Islands Port Authority v. United States

United States Court of Appeals
for the Federal Circuit
______________________
VIRGIN ISLANDS PORT AUTHORITY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1698
______________________
Appeal from the United States Court of Federal Claims
in No. 1:13-cv-00390-EGB, Senior Judge Eric G. Bruggink.
______________________
Decided: April 26, 2019
______________________
G EOFFREY P. EATON, Winston & Strawn LLP, Washing-
ton, DC, argued for plaintiff-appellant.
ELIZABETH A NNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by J OSEPH H. H UNT , CLAUDIA BURKE, R OBERT
EDWARD K IRSCHMAN, J R.
______________________
Before D YK, MAYER , and CLEVENGER , Circuit Judges.
D YK, Circuit Judge.

-- 1 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 2
The 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. Cus-
toms and Border Protection (“Customs”) constituted an il-
legal exaction. We affirm.
BACKGROUND
The dispute between VIPA and the United States cen-
ters 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 stat-
utes below as authorizing collection of the disputed fees.
The 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 . . . .
The 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 terri-
tory of the United States that can set and receive proceeds
from duties, and VIPA is “a public corporation and autono-
mous governmental instrumentality” of the Virgin Islands’
government. V.I. Code Ann. tit. 29, § 541(a). VIPA is

-- 2 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 3
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 Sched-
ule.
Customs 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 Vir-
gin Islands Deposit Fund, which the Virgin Islands con-
trols. The funds were then transferred to VIPA. The source
of authority for Customs’ collection of the fees before 1994
is unclear.
In 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 Is-
lands.” J.A. 345. The 1994 MOA “identif[ied] those activi-
ties 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 rea-
son 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’ author-
ity to enter into the 1994 MOA was 48 U.S.C. § 1469c.
The current dispute arose from Customs’ increasing
collection costs, which outpaced the collection of the dis-
puted fees starting in 2004. This left VIPA without any pro-
ceeds from the disputed fees. In 2006, VIPA removed the
instruction in its Marine Tariff Schedule that users should

-- 3 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 4
pay the disputed fees to Customs.1 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 a letter
to Customs in February 2011, indicating that VIPA would
start to collect the disputed fees on March 1, 2011. Customs
thereafter ceased collecting the disputed fees and VIPA
started to collect them instead.2
In 2012, VIPA sued Customs to recover the approxi-
mately $ 10 million in disputed fees that Customs collected
from February 2008 to March 1, 2011.3 The parties filed
cross-motions for summary judgment, and the Claims
Court denied VIPA’s motion and granted the United States’
1 Before the 2006 amendment, the Marine Tariff
Schedule instructed “[a]ll vessels using the facilities of the
Virgin Islands Port Authority shall pay to the District Di-
rector, U.S. Customs” wharfage fees, and ship dues were to
be paid to the “District Director of U.S. Customs.” J.A. 11.
The 2006 amendment, in relevant part, removed those ref-
erences for users to pay these fees to Customs.
2 Eventually in 2014, the 1994 MOA was amended
by Customs and the Virgin Islands to remove mention of
wharfage and tonnage fees.
3 VIPA’s basis for the choice of start date of Customs’
unauthorized collection (February 2008) is unclear as it
does not seem to be tied to any action VIPA or Customs
took with respect to the disputed fees at issue here. VIPA’s
counsel also did not know why that start date was selected.
Oral Arg. at 9:35–9:37.

-- 4 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 5
motion. The only issue VIPA has appealed is whether Cus-
toms committed an illegal exaction by collecting the dis-
puted fees allegedly without authorization from 2008 to
2011.4 We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
D ISCUSSION
We review the Claims Court’s grant of summary judg-
ment de novo, and summary judgment is appropriate if the
movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment
as a matter of law. 8x8, Inc. v. United States, 854 F.3d 1376,
1380 (Fed. Cir. 2017).
One way an illegal exaction occurs is when the “plain-
tiff has paid money over to the Government, directly or in
effect, and seeks return of all or part of that sum” that was
“improperly paid, exacted, or taken from the claimant in
contravention of the Constitution, a statute, or a regula-
tion.” Eastport S.S. Corp. v. United States, 372 F.2d 1002,
1007 (Ct. Cl. 1967). “The amount [allegedly illegally] ex-
acted and paid may be recovered whether the money was
paid directly to the government, or was paid to others at
the direction of the government to meet a governmental ob-
ligation” in contravention of law. Aerolineas Argentinas v.
United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996). VIPA
argues that Customs committed an illegal exaction when it
collected the disputed fees after its authority to do so was
revoked in 2007. See Eastport, 372 F.2d at 1007–08; Aero-
lineas, 77 F.3d at 1572–74. The government argues that
Customs’ actions did not constitute an illegal exaction be-
cause it neither received money directly from VIPA nor
4 VIPA abandoned its contract-based claims at sum-
mary judgment, and it did not appeal the Claims Court’s
grant of summary judgment to the government on the con-
tracts issue and VIPA’s takings claim.

-- 5 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 6
required VIPA to pay a third party. See Aerolineas, 77 F.3d
at 1578; Camellia Apartments, Inc. v. United States, 334
F.2d 667, 669 (Ct. Cl. 1964). We need not resolve the issue
of whether Customs’ collection constitutes an “in effect” il-
legal exaction because this is a merits issue, not a jurisdic-
tional one. As discussed below, we conclude that VIPA’s
claim is without merit because Customs was authorized to
collect the disputed fees and that this authority was not
revoked during the time frame at issue here.
I. Authorization
On its face, 48 U.S.C. § 1469c allows an agency or in-
strumentality of the United States (for example, Customs)
to provide services to the government of a territory (for ex-
ample, the Virgin Islands) on a reimbursable basis. The
government does not suggest that it could provide reim-
bursable services without authorization by a territory’s
government under this statute. Instead, the government
relies on the 1994 MOA with the Virgin Islands for Cus-
toms’ authorization to collect the disputed fees. VIPA ar-
gues that the 1994 MOA could not be the source of
authority because Customs was collecting the disputed fees
before 1994. VIPA argues that its Marine Tariff Schedule,
which has been in effect since 1968, was what authorized
Customs’ collection of the disputed fees, at least until 2006
when it was amended.
By its own terms, the 1994 MOA provided a “method-
ology 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. It also “iden-
tif[ied] those activities that are reimbursable” including
“[p]rocessing [imported and exported] cargo,” which in-
cluded collecting the “tonnage [and] wharfage” fees.
J.A. 345, 347. Customs also agreed to report on the collec-
tion of these fees. One of the sources of authority for these
activities cited in the agreement was 48 U.S.C. § 1469c. As
VIPA recognized in its 2007 letter to Customs, the 1994

-- 6 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 7
MOA was an agreement “for services to be provided” by
Customs, including Customs’ “collecti[on of] the following
on behalf of the Government of the Virgin Islands: . . . ton-
nage and wharfage [fees].” J.A. 371. “The [1994 MOA] fur-
ther allowed [Customs], based on a formula, to retain a
portion of the funds collected to be compensated for its ser-
vices.” J.A. 371. On its face, the 1994 MOA provides au-
thorization for Customs to collect the disputed fees and to
reimburse itself for costs attendant to that service. Because
we conclude that no reasonable fact-finder could conclude
that the 1994 MOA did not authorize Customs’ collection of
the fees, there is no material dispute of fact on this issue.5
To the extent VIPA’s Marine Tariff Schedule also con-
stituted authorization for Customs to collect the disputed
fees, that does not undermine our conclusion. It may be
that Customs has had multiple overlapping sources of au-
thorization throughout the years to collect the disputed
fees, but the issue in this litigation is whether Customs had
authority from February 2008 to March 1, 2011. The 1994
MOA provided authority during that time period, unless
that authority was revoked.6
5 To the extent VIPA argues that it is entitled to fur-
ther discovery on this issue, it did not move for such relief
pursuant to Rule 56(d) of the Rules of the U.S. Court of
Federal Claims.
6 The government contends that the 1994 MOA is
“an agreement between two sovereigns that did not neces-
sarily contemplate a lawsuit for contract damages” but in-
stead merely “provided for a process whereby the parties
would either” amend or revoke the agreement. United
States, Response Br. at 31. Even if that is the case, the
MOA nevertheless provided authorization for Customs to
provide a service (collecting the fees) on a reimbursable ba-
sis under 48 U.S.C. § 1469c. Moreover, it does not make a
difference that VIPA was not party to the 1994 MOA

-- 7 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 8
II. Revocation
VIPA argues that even if the 1994 MOA constitutes au-
thorization for purposes of 48 U.S.C. § 1469c, that author-
ity was revoked in 2007 before Customs collected the
disputed fees from 2008 to 2011. The Claims Court stated
that “VIPA’s 2007 letter was not effective to revoke the
1994 MOA according to the terms of the MOA itself.” J.A.
21. Here, principles of agency law provide guidance as to
what is required to revoke authorization under 48 U.S.C.
§ 1469c. “The question [of authorization] is at least pre-
sumptively governed by principles of agency law . . . .” Fed.
Election Comm’n v. NRA Political Victory Fund, 513 U.S.
88, 98 (1994). “When discussing the contours and scope of
the common law, the Supreme Court has instructed that it
is appropriate for us to look to the pertinent Restate-
ment . . . .” Commonwealth Edison Co. v. United States,
271 F.3d 1327, 1353 (Fed. Cir. 2001) (en banc).
“[An agent’s] authority is revoked or renounced by writ-
ten or spoken words or other conduct which, reasonably in-
terpreted, indicates that the principal no longer consents
to have the agent act for him . . . .” Restatement (Second)
of Agency § 119 cmt. a (1958). “[T]he meaning that may
reasonably be inferred from [a manifestation of revocation]
will reflect the context in which the manifestation is
made . . . .” Restatement (Third) of Agency § 1.03 cmt. e
(2006). “Between particular persons, prior dealings or an
ongoing relationship frame the context in which manifes-
tations are made and understood.” Id. “The principal has
power to revoke and the agent has power to renounce, alt-
hough doing so is in violation of a contract between the
because § 1469c requires authorization from the govern-
ment of a territory, which Customs had from the Virgin Is-
lands’ agreement to the 1994 MOA.

-- 8 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 9
parties and although the authority is expressed to be irrev-
ocable.” Restatement (Second) of Agency § 118 cmt. b.
The Claims Court’s conclusion that VIPA could not re-
voke Customs’ authority without revoking or amending the
1994 MOA is inconsistent with settled agency law that a
principal may revoke an agent’s authority even if such rev-
ocation is in violation of an agreement. The question here
is whether Customs’ authority under the 1994 MOA was
revoked.
At the outset we note that the 2006 amendment to
VIPA’s Marine Tariff Schedule could not have revoked Cus-
toms’ authority under the 1994 MOA. In 2006, VIPA re-
moved its instructions for users to pay the disputed fees to
Customs. The amended Marine Tariff Schedule did not oth-
erwise indicate to whom the fees should be paid, and Cus-
toms continued to collect the fees until 2011. Based on
Customs’ historical practice of collecting the disputed fees,
the equivocal meaning of VIPA’s actions, and the separate
ongoing vitality of the 1994 MOA, we conclude that this
change in the Marine Tariff Schedule could not have rea-
sonably indicated a revocation of authority under the 1994
MOA.7
Instead, VIPA relies on its letter sent to Customs in
2007 as revoking Customs’ authority. The letter indicated
that VIPA was “appealing to [Customs] so that [VIPA] can
start to collect port fees and charges as listed in its tariff.”
J.A. 371. The letter also noted that VIPA “stands ready to
submit any additional information [Customs] may require,
7 There is also the issue of whether VIPA’s actions
could be attributable to the government of a territory, i.e.,
the Virgin Islands, under 48 U.S.C. § 1469c. We need not
decide that issue as we conclude that VIPA’s change to the
tariff schedule did not constitute an effective revocation of
authority for Customs to collect the disputed fees.

-- 9 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 10
and is willing to meet to discuss this matter.” J.A. 372. Cus-
toms responded on August 24, 2007, “respectfully den[ying]
VIPA’s request” because it believed it was required under
federal law, specifically identifying 48 U.S.C. §§ 1406h,
1406i, 1642a, to collect the disputed fees as customs duties.
J.A. 375–76. It noted that “[i]f VIPA disagrees with [Cus-
toms’] position outlined above, VIPA is welcome to provide
[Customs] with evidence to the contrary.” J.A. 376. The
Virgin Islands’ governor’s signature with VIPA’s 2007 let-
ter indicates that the Virgin Islands agreed to VIPA’s re-
quest.
The 2007 letter cannot reasonably be interpreted as re-
voking Customs’ authority and therefore does not implicate
a dispute of material fact. The 2007 letter merely stated
that VIPA was “appealing to [Customs] so that it can start
to collect” wharfage and tonnage fees. J.A. 371 (emphasis
added). And VIPA indicated it was “ready to submit any
additional information [Customs] may require, and is will-
ing to meet to discuss this matter.” J.A. 372 (emphasis
added). Thus, the letter indicated that VIPA and the Virgin
Islands were willing to discuss the issue of whether or not
Customs would continue to collect the disputed fees, not
that the authority was being revoked. Compare Gov’t Guar-
antee Fund of Republic of Finland v. Hyatt Corp., 95 F.3d
291, 306 (3d Cir. 1996) (concluding that a letter stating the
agreement was “void, terminated, and/or expired” and de-
manding “immediate[] surrender” of the property indicated
that the agency relationship was terminated). This conclu-
sion is supported by communications after 2007 between
the Virgin Islands and Customs, which focused on amend-
ing the 1994 MOA to change the collection of the disputed
fees.
Moreover, the 1994 MOA clearly laid out a process by
which the Virgin Islands could either revoke or amend the
agreement. It provided that “[t]his MOA may be revoked
by either party upon providing written notice to the other
party 180 days prior to the proposed revocation date.” J.A.

-- 10 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 11
354 (emphasis added). “Any change required by the [par-
ties] . . . in the provisions of this MOA shall be initiated by
the requesting party in a written statement setting forth
the exact nature and reason for the change.” J.A. 353 (em-
phasis added). To be sure, as noted earlier, an agency rela-
tionship can be terminated even in violation of an
agreement. But absent a clear statement to the contrary, it
was reasonable for Customs to assume that if the Virgin
Islands wanted to revoke Customs’ authority, revocation
would be accomplished by invoking the specific revocation
provision in the 1994 MOA. VIPA’s reliance on the 2007
letter is therefore misplaced, as it cannot be reasonably in-
terpreted as revoking Customs’ authority.
Finally, VIPA argues that it was futile for it to attempt
to revoke Customs’ collection authority under the 1994
MOA because Customs claimed an obligation to collect
based on other statutory sources, 48 U.S.C. §§ 1406h,
1406i, 1642a, claims of authority that Customs has since
abandoned. VIPA claims that “[h]aving declared that its
collection of VIPA’s fees would continue with or without
VIPA’s authorization, [Customs] effectively mooted any ef-
fort by VIPA or the USVI Government to amend the 1994
MOA, because under [Customs’] legal position such an
amendment would not have stopped [Customs] from col-
lecting and retaining VIPA’s fees.” VIPA, Open. Br. at 11.
In the regulatory takings context, an erroneous govern-
ment claim of right does not constitute a taking unless
there is “a prohibition or . . . coercive government action.”
Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1311
(Fed. Cir. 2015). “[G]overnment action devoid of coercion,
legal threat, regulatory restriction, or any binding obliga-
tion [does not] effect a regulatory taking.” Id. Coercion of
the claimant is of course not typically an element of an il-
legal exaction claim, though coercion might in the present
context excuse action to revoke the government’s authority.
But, as in the takings context, a mere claim of right is not
coercive and here, there was neither a prohibition nor

-- 11 of 12 --

VIRGIN ISLANDS PORT AUTHORITY v. UNITED STATES 12
coercive government action. Indeed, VIPA disputed Cus-
toms’ claim that statutes required it to collect the disputed
fees, and VIPA never suggested until the lawsuit began it
was coerced into foregoing revocation of Customs’ authority
under the 1994 MOA. The government’s claim of statutory
compulsion did not prevent VIPA from challenging the gov-
ernment’s claim of statutory authority by revoking the gov-
ernment’s authority under the 1994 MOA.
CONCLUSION
Because Customs was authorized under 48 U.S.C.
§ 1469c, in combination with the 1994 MOA, to collect the
disputed fees from February 2008 to March 1, 2011, and
because that authority was not revoked during that time,
we affirm the Claims Court’s grant of the United States’
motion for summary judgment.
AFFIRMED
COSTS
No costs.

-- 12 of 12 --