United States Court of Appeals
for the Federal Circuit
__________________________
FORD MOTOR COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-1224
__________________________
Appeal from the United States Court of International
Trade in case no. 06-CV-0217, Judge Leo M. Gordon.
___________________________
Decided: April 16, 2012
___________________________
GREGORY G. GARRE, Latham & Watkins, LLP, of
Washington, DC, argued for the plaintiff-appellant. On
the brief were BRUCE J. CASINO, HOWARD R. RUBIN,
ROBERT T. SMITH and JENNIFER T. KARLIN, Katten Muchin
Rosenman LLP, of Washington, DC. Of counsel was
PAULSEN KING VANDEVERT, Ford Motor Company, of
Dearborn, Michigan.
TARA K. HOGAN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were TONY WEST, Assis-
FORD MOTOR CO v. US 2
tant Attorney General, JEANNE E. DAVIDSON, Director,
and TODD M. HUGHES, Deputy Director.
__________________________
Before LINN, DYK, and O’MALLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK. Dissent-
ing opinion filed by Circuit Judge O’MALLEY.
DYK, Circuit Judge.
Ford Motor Company (“Ford”) appeals a judgment of
the U.S. Court of International Trade (“Trade Court”).
The Trade Court granted partial summary judgment in
favor of the United States with respect to Ford’s claims
for refunds of the Harbor Maintenance Tax allegedly paid
on exports before July 1, 1990. Ford Motor Co. v. United
States (“Pre-July 1, 1990, Decision”), No. 06-00217, slip
op. at 7 (Ct. Int’l Trade Jan. 27, 2010). The Trade Court
also separately granted summary judgment in favor of the
United States with respect to post-July 1, 1990, Harbor
Maintenance Tax refund claims. Ford Motor Co. v.
United States (“Post-July 1, 1990, Decision”), 744 F. Supp.
2d 1367, 1370 (Ct. Int’l Trade 2010). In both respects, the
Trade Court found that Ford did not submit the proof of
payment of export taxes required by applicable regula-
tions. We affirm.
BACKGROUND
In 1998, the Supreme Court held that the Harbor
Maintenance Tax (“HMT”), 26 U.S.C. §§ 4461-4462, was
unconstitutional as applied to exports because it violated
the Export Clause of the Constitution. United States v.
U.S. Shoe Corp., 523 U.S. 360, 363 (1998). This case
concerns the regulations adopted by U.S. Customs and
Border Protection (“Customs”) governing the procedures
for refund claims for such export taxes. The history of the
3 FORD MOTOR CO v. US
HMT and the rules adopted by Customs for the payment
and refund of the HMT is set forth more fully in this
court’s opinion in Chrysler Corp. v. United States, 592
F.3d 1330 (Fed. Cir. 2010). For purposes of this case, the
following history is a brief summary.
In 1986, Congress enacted the HMT, which required
all shippers to pay an ad valorem tax on commercial cargo
shipped through the nation’s ports. Water Resources
Development Act of 1986, Pub. L. No. 99-662, Title XIV,
§ 1402(a), 100 Stat. 4082, 4266-69. The HMT was im-
posed on exports, imports, and domestic shipments. 1 To
receive payment of the HMT, Customs set up lock boxes
at First Chicago Bank for each type of HMT payment.
Separate lock boxes were established for exports, imports,
and domestic shipments. HMT payors were instructed to
send their payments, along with the necessary documen-
tation, to the appropriate lock box. On receipt, the bank
processed the payments and entered into its system the
information related to each payment, such as the remit-
ter’s name and address, the type and amount of payment,
and the deposit date. Each night, the information in the
bank’s system was transmitted by electronic interface to
Customs’s Automated Commercial System (“ACS”) data-
base. The bank shipped the original paper documentation
to Customs the following day, but Customs did not ini-
tially review the paper documentation or verify the elec-
tronic data.
In 1998, the Supreme Court held the tax unconstitu-
tional only as it applied to exports. After that decision,
Customs developed an administrative refund process for
1 The HMT was also imposed on certain other
transactions such as foreign trade zone admissions and
arriving passengers aboard commercial vessels. For
simplicity we ignore these.
FORD MOTOR CO v. US 4
HMT paid on exports. As part of this process, Customs
contracted with a third party to create a stand-alone HMT
database to assist in processing HMT refund claims for
export taxes. The stand-alone HMT database contained
HMT payment and refund data downloaded directly from
the ACS database. Because only the HMT on exports was
held unconstitutional, it was necessary to differentiate
between different types of HMT payments in processing
refunds.
While processing refunds, Customs discovered wide-
spread inaccuracies in its HMT database as compared to
the paper documentation received from the bank. These
errors were introduced by both payors and bank person-
nel. Some payors submitted HMT filings that were not
carefully prepared and were either unclear, illegible, or
did not contain enough detail to allow the correct process-
ing by the bank. Other payors would, for example, make
payments for different types of HMT without separating
export HMT payments from the other types and sending
each to the appropriate lock box. Because bank personnel
did not separate out payments into different categories
when processing the payments, these consolidated pay-
ments would be incorrectly entered into the system as
consisting of a single type of HMT payment. Even where
not consolidating payment types, payors would sometimes
send payments to the wrong lock box, which would cause
the bank personnel to process the payment as though it
were of a different type, such as, for example, processing a
payment as an export HMT payment when in fact it
might have been an import HMT payment which was not
refundable. In other instances, bank personnel would
simply incorrectly key in the information from the paper
documentation received. A comparison with the paper
documentation would reveal most of these errors. Cus-
toms made thousands of corrections to its database but
5 FORD MOTOR CO v. US
was not able to make corrections related to payments
made before July 1, 1990, because it no longer possessed
the original paper documentation.
In light of the lack of paper documentation for claims
filed before July 1, 1990, Customs established different
requirements depending on whether an exporter was
seeking a refund of pre- or post-July 1, 1990, payments.
For pre-July 1, 1990, payments, the regulations provided
that an exporter could not rely on the database alone but
was required to submit “supporting documentation”—i.e.,
paper documentary proof “establishing entitlement to a
refund.” 19 C.F.R. § 24.24(e)(4)(iv)(C). For post-July 1,
1990, payments, Customs issued a “Harbor Maintenance
Tax Payment Report and Certification” listing all export
tax payments reflected in its corrected database (corrected
based on the paper documentation). If an exporter con-
cluded that the report failed to include a payment or
listed an incorrect amount, the exporter could dispute the
report again by submitting “supporting documentation” to
establish entitlement to a refund. Id. The same regula-
tion (19 C.F.R. § 24.24(e)(4)(iv)(C)) defined “supporting
documentation” for both pre-July 1, 1990, claims and
post-July 1, 1990, claims. 2
2 The relevant regulation provides in full:
The supporting documentation that CBP [Cus-
toms and Border Patrol] will accept as establish-
ing entitlement to a refund, whether submitted
with a refund request or a request for a Revised
Report/Certification, is whichever of the following
documents CBP accepted with the payment at the
time it was made: a copy of the Export Vessel
Movement Summary Sheet; where an Automated
Summary Monthly Shipper’s Export Declaration
was filed, a copy of a letter containing the ex-
porter’s identification, its employer identification
FORD MOTOR CO v. US 6
Ford filed HMT refund claims with Customs in April
2003 for both pre- and post-July 1, 1990, payments. To
date, Ford has received export HMT refund payments
totaling more than $17 million from Customs. At issue
here are approximately $2.5 million in HMT refund
payments that Ford alleges it is still owed. With respect
to its pre-July 1, 1990, claims, Ford submitted a 1998
Freedom of Information Act (“FOIA”) Report, which had
been provided by Customs to Ford at Ford’s request,
summarizing and listing each quarterly HMT payment
made between 1987 and 1992. With respect to the pre-
July 1, 1990, period, the FOIA Report had been drawn
entirely from the information in Customs’ ACS database.
In addition, Ford submitted an affidavit attesting to the
fact that it was only claiming refunds of HMT paid on
export shipments and two declarations from Ford employ-
ees attesting to the consistency and quality of Ford’s
quarterly HMT payment records. With respect to its post-
July 1, 1990, claims, Ford submitted copies of 20 Export
number (EIN), the Census Bureau reporting sym-
bol, and, the quarter for which the payment was
made; or a copy of a Harbor Maintenance Fee
Quarterly Summary Report, CBP Form 349, for
the quarter covering the refund requested. CBP
also will consider other documentation offered as
proof of payment of the fee, such as cancelled
checks and/or affidavits from exporters attesting
to the fact that all quarterly harbor maintenance
tax payments made by the exporter were made
exclusively for exports, and will accept that other
documentation as establishing entitlement for a
refund only if it clearly proves the payments were
made for export harbor maintenance fees in the
amounts sought to be refunded and were made by
the party requesting the refund or the party on
whose behalf the refund was requested.
19 C.F.R. § 24.24(e)(4)(iv)(C).
7 FORD MOTOR CO v. US
Vessel Movement Summary Sheets (“EVMSSs”) 3 from
Ford’s own files which allegedly demonstrated Ford’s
HMT payments on export shipments for which Customs
had no record.
Customs denied Ford’s claims and its subsequent pro-
test because Ford submitted insufficient supporting
documentation. Ford then filed suit in the Trade Court,
alleging that the supporting documentation it had filed
entitled it to a refund of $2,652,257.84. Following discov-
ery, both parties filed cross-motions for summary judg-
ment with respect to Ford’s claims for pre-July 1, 1990,
HMT. The Trade Court entered judgment in favor of the
United States for these claims, reasoning that the FOIA
Report, because it was derived from a flawed and unreli-
able database, did not provide proof as required under the
refund regulations. Pre-July 1, 1990, Decision, slip op. at
4-5. Neither the affidavit nor the declarations verified
Ford’s payments of export-related HMT. Id. at 5.
The parties later filed cross-motions for summary
judgment with respect to Ford’s claims for post-July 1,
1990, HMT. The Trade Court again ruled in favor of the
United States, finding that the record was devoid of “any
evidentiary proffer from Ford that the Export Vessel
Summary Sheets were ‘accepted’ by Customs at the time
of Ford’s alleged HMT payments.” Post-July 1, 1990,
Decision, 744 F. Supp. 2d at 1370. Indeed, “[t]he record
lacks evidence that Ford’s Export Vessel Summary Sheets
were ever mailed, transmitted, or delivered to, and ulti-
mately accepted by, Customs at the time of Ford’s alleged
HMT payments.” Id. Having found in favor of the United
States on all disputed refund claims, the Trade Court
3 An EVMSS was a document filed with Customs
that certified a company’s exports subject to the HMT on
exports for a particular quarter. See, e.g., J.A. 421.
FORD MOTOR CO v. US 8
entered final judgment. Ford timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
We review the Trade Court’s rulings on summary
judgment “for correctness as a matter of law, deciding de
novo the proper interpretation of the governing statute
and regulations as well as whether genuine issues of
material fact exist.” BMW Mfg. Corp. v. United States,
241 F.3d 1357, 1360 (Fed. Cir. 2001).
I
Ford argues that it “establish[ed] entitlement to a re-
fund” under 19 C.F.R. § 24.24(e)(4)(iv)(C) with respect to
its pre-July 1, 1990, claims by submitting the 1998 FOIA
Report as well as two declarations and an affidavit estab-
lishing the regularity and level of detail in the HMT
export documentation submitted by Ford to the bank for
transmittal to Customs. Ford relies on the portion of the
regulation providing that Customs would accept
other documentation offered as proof of payment
of the fee, such as cancelled checks and/or affida-
vits from exporters attesting to the fact that all
quarterly harbor maintenance tax payments made
by the exporter were made exclusively for exports.
19 C.F.R. § 24.24(e)(4)(iv)(C). However, the documents
offered by Ford, without more, do not “clearly prove[] the
payments were made for export harbor maintenance fees
in the amounts sought to be refunded” as required by the
regulations, id., and thus are insufficient to constitute
supporting documentation establishing entitlement to a
refund.
In Chrysler, we upheld Customs’s rulemaking decision
barring exporters from relying solely on its electronic
9 FORD MOTOR CO v. US
database to prove entitlement to a refund. 592 F.3d at
1337. Customs had explained that its “experience with
older payments recorded in the database has shown that
the database is unreliable. Customs therefore cannot rely
exclusively on that record source to confirm export fee
payments . . . .” Amended Procedure for Refunds of
Harbor Maintenance Fees Paid on Exports of Merchan-
dise, 67 Fed. Reg. 31,948, 31,950 (May 13, 2002) (empha-
sis added).
Here, Ford is attempting to demonstrate its entitle-
ment to a refund through a FOIA Report which was
drawn from the same unreliable information. Ford con-
tends that the FOIA Report is reliable because it was
based on “information and data in Customs’ ACS main-
frame computer system,” not the “unique, stand-alone and
allegedly flawed HMT database” in Chrylser. Appellant’s
Br. 27. This is not the case. The ACS database from
which the FOIA Report was drawn as to the pre-July 1,
1990, claims contained the same errors found in the
stand-alone HMT database. The record in this case is
clear that “[t]he standalone HMT database was created by
an electronic download of data [in a] file contained in the
ACS [database].” J.A. 552; see also J.A. 324 (“Initial input
of data into the [HMT] database came from downloaded
data from Customs’ Harbor Maintenance Fee Module
(HMT collection data) and Refund Module, which con-
tained HMT refund data.”). Ford did not point to any
evidence that errors were introduced into the HMT data-
base when downloaded from the ACS database. 4 Thus,
any errors in the admittedly flawed HMT database were
also necessarily present in the ACS database from which
4 The fact that the ACS database might contain ad-
ditional data as compared to the HMT database does not
indicate that it was any more reliable with respect to the
refund data that was imported into the HMT database.
FORD MOTOR CO v. US 10
the FOIA Report was drawn, and Customs properly
rejected the FOIA Report as supporting documentation. 5
Ford also submitted two declarations demonstrating,
inter alia, the care and precision with which Ford pre-
pared the paper HMT export documentation submitted to
the bank for transmittal to Customs. It is Ford’s position
that these documents demonstrate that Ford’s refund
claims did not contain the kinds of errors commonly found
in the HMT database with respect to other pre-July 1,
1990, refund claims, and thus the FOIA Report should
establish Ford’s entitlement to export refunds. These
documents, however, do not demonstrate that the HMT
database was accurate with respect to Ford’s payments.
As described above, errors in the electronic database
were caused by both bank personnel error in processing
and recording HMT payments and exporter error in
submitting unclear or incomplete information, misidenti-
fying or consolidating different types of payments, and
sending payments to the wrong lock box. See Chrysler,
592 F.3d at 1332. Ford’s declarations demonstrate only
that its HMT submissions were carefully prepared and
that it did not misidentify or incorrectly consolidate its
export HMT payments. These declarations do not rule
out the possibility of all exporter error. For example, they
do not rule out the possibility that certain payments were
sent to the wrong lock box. Furthermore, even if the
documentation submitted by Ford to the bank were
entirely accurate and sent to the correct lock box, bank
personnel still may have committed errors in recording
those payments in the database. The declarations at best
5 Ford argues that the FOIA Report is entitled to a
presumption of correctness and regularity. This argu-
ment was effectively rejected in Chrylser. See 592 F.3d at
1337.
11 FORD MOTOR CO v. US
demonstrate only that some sources of error in the HMT
database were not present with respect to Ford. 6 Thus,
Customs was entitled to reject Ford’s pre-July 1, 1990,
claims as insufficient because there still was a high
potential for error.
II
Ford also argues that Customs erred with respect to
its post-July 1, 1990, claims. Customs retained all paper
documents after July 1, 1990, and it was unable to locate
a record of the particular disputed EVMSSs in the Cus-
toms depository. Ford submitted evidence that EVMSSs
with respect to those transactions appeared in Ford’s files,
and urges that this evidence was sufficient evidence to
establish its right to a refund. Ford is again incorrect.
The relevant regulation, 19 C.F.R. § 24.24(e)(4)(iv)(C),
describes the documents an exporter must produce to
demonstrate entitlement to a refund for disputed post-
July 1, 1990, claims. The regulation states that “[t]he
supporting documentation that [Customs] will accept as
establishing entitlement to a refund [for post-July 1,
1990, claims] . . . is whichever of the following documents
[Customs] accepted with the payment at the time it was
made,” which includes the EVMSS. 19 C.F.R.
§ 24.24(e)(4)(iv)(C) (emphasis added). Ford argues that
6 The affidavit likewise does not establish entitle-
ment to a refund. Although it was the kind of affidavit
contemplated by 19 C.F.R. § 24.24(e)(4)(iv)(C) (“. . . affida-
vits from exporters attesting to the fact that all quarterly
harbor maintenance tax payments made by the exporter
were made exclusively for exports . . .”), because it did
nothing to address the database errors and lack of docu-
mentary proof on the part of Ford described above, it did
not “clearly prove[] the payments were made for export
harbor maintenance fees in the amounts sought to be
refunded,” id.
FORD MOTOR CO v. US 12
this regulation requires only that an exporter produce the
type of documents Customs accepted with payment.
Customs argues that the exporter must demonstrate that
the particular document it submitted to support the
refund claim was actually accepted by Customs.
We think that the best interpretation of the regula-
tion is that actual acceptance by Customs need not be
shown. In this respect, the regulation is not ambiguous.
Customs explained during rulemaking that it would
“accept as proof of payment, when required to be submit-
ted, whichever type of document Customs accepted with
the payment at the time it was made.” 67 Fed. Reg. at
31,950 (emphasis added). As described above, payments
were not submitted directly to Customs but were made to
bank lock boxes and subsequently transferred to Customs
by the bank. There is no contention that an exporter
would receive any sort of notification from Customs that
its documentation had been “accepted” by Customs. Thus,
based on the record before us, it would not be possible for
an exporter to demonstrate that its documentation was
actually accepted by Customs. The best interpretation of
this regulation is that an exporter must produce the type
of document it submitted to the bank. Ford admits that
the regulation requires at least this much.7
However, Ford’s evidence that it located these docu-
ments in its files does not show submission of the docu-
ments to the bank and does not raise a genuine issue of
material fact. The presence of these documents in Ford’s
files shows only that the documents appeared in Ford’s
files. Ford was in a position to know whether the docu-
7 Oral Argument at 4:16-4:27, available at
http://www.cafc.uscourts.gov/oral-argument-recordings
/2011-1224/all (“Court: So you agree that you at least had
to show that you submitted them to the bank? . . . Coun-
sel for Ford: The answer is yes.”).
13 FORD MOTOR CO v. US
ments in its files were submitted to the bank. Without
additional evidence, by declaration or otherwise, that
these particular documents were submitted or that their
presence in a particular file demonstrated submission,
Ford has not raised a genuine issue of material fact. See
Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419-20 (5th
Cir. 2007) (explaining that in order to defeat summary
judgment, where the issue is whether a particular docu-
ment was mailed (thus invoking a presumption of re-
ceipt), a party must submit physical evidence of mailing
or testimony or affidavit concerning customary mailing
practices as to the type of document in question). Ford
submitted neither type of evidence, and thus did not
submit sufficient evidence to defeat summary judgment.
AFFIRMED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
__________________________
FORD MOTOR COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-1224
__________________________
Appeal from the United States Court of International
Trade in case no. 06-CV-0217, Judge Leo M. Gordon.
__________________________
O’MALLEY, Circuit Judge, dissenting.
I agree with the majority’s interpretation of 19 C.F.R.
§ 24.24(e)(4)(iv)(C), the governing regulation. I disagree,
however, that application of that regulation to the record
justifies summary disposition of Ford’s refund claims.
Because I would remand this action to the Court of Inter-
national Trade for further fact finding with respect to
both the pre- and post-July 1, 1990, claims, I respectfully
dissent.
I
As the party defending a favorable summary judg-
ment ruling, the government bears the burden of demon-
strating the absence of any genuine issues of material
fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
FORD MOTOR CO v. US 2
(1970). Ford has proffered evidence sufficient to demon-
strate that genuine issues of material fact exist with
respect to the pre-July 1, 1990, claims. Specifically, in
conjunction with the FOIA report, the declarations sub-
mitted by Ford suffice to raise a genuine issue of material
fact regarding the accuracy of its refund claims.
First is the declaration of Pamela Stec, who worked in
Ford’s customs operations group, the group charged with
ensuring that Ford complied with HMT reporting and
payment requirements. Stec personally signed and
submitted at least one quarterly HMT report to Customs
during the pre-July 1, 1990, period. In that report, which
is attached to her declaration, Stec signed a certification
indicating that the information in the report related to
cargo loaded for export. While Stec was not personally
responsible for all of Ford’s quarterly HMT filings and
payments, she claims to have personal knowledge of, and
experience with, Ford’s customs compliance practices.
Based on that knowledge and experience, and her review
of many of Ford’s HMT reports, Stec expresses confidence
that Ford’s HMT quarterly filings filed between 1987 and
1990 would have contained the same information and
detail as the one she signed. Stec, in other words, ex-
presses confidence that Ford’s HMT quarterly filings are
properly classified as export payments.
A declaration submitted by Paulsen Vandevert lends
further support for this claim. An international trade
attorney at Ford, Vandevert is familiar with Ford’s cus-
toms practices. Vandevert reviewed several of Ford’s
quarterly HMT reports and found that each one clearly
identified the classification of the HMT payment. Van-
devert, moreover, submitted a certification to Customs, in
support of Ford’s refund claim, in which he claimed that
all of Ford’s HMT payments identified as Code 502—the
code for exports—were properly classified as export pay-
3 FORD MOTOR CO v. US
ments. While Vandevert acknowledges that the Customs
database contains errors, he believes that Ford’s HMT
reports are accurate, and that the accuracy of Ford’s
reports demonstrates that Ford’s payments were properly
classified as export payments. In other words, he asserts
that, to the extent the Customs database reflects pay-
ments by Ford, the government can have confidence that
those entries were not erroneous.
Because we are considering Ford’s proffered declara-
tions at the summary judgment stage, we must view them
in the light most favorable to Ford. Adickes, 398 U.S. at
157 (noting that a court must view the evidence in the
light most favorable to the party opposing summary
judgment in determining whether a genuine issue of
material fact exists). Viewed in that posture, Stec’s and
Vandevert’s declarations present credible testimony from
two Ford employees who have personal knowledge of
Ford’s HMT reporting practices and who have reviewed
many of Ford’s quarterly HMT reports. Both employees
support Ford’s claim that its HMT payments were accu-
rately classified as export payments. A reasonable fact
finder could conclude that, given this testimony, it is more
likely than not that Ford’s HMT payments were properly
classified as export payments, both by Ford and Customs,
notwithstanding any other errors in the Customs data-
base.
The majority dismisses the significance of the Stec
and Vandevert declarations because, in its view, the
declarations do not rule out all possibility that Ford made
errors in its submissions; that certain payments were sent
to the wrong lock box; or that bank personnel made errors
in recording the payments in the database. Majority Op.
at 10-11. To survive the government’s summary judg-
ment motion, however, Ford is not required to resolve all
possible doubts regarding inaccuracies in the Customs
FORD MOTOR CO v. US 4
HMT database. Ford need only demonstrate that a
reasonable fact finder could conclude that Ford’s own
documentary proof accurately shows that its payments
were remitted for exports. See 19 C.F.R.
§ 24.24(e)(4)(iv)(C) (requiring the submission of “support-
ing documentation” to “establish[] entitlement to a re-
fund”). A reasonable fact finder could conclude that
Ford’s proof meets that standard.
II
Ford’s evidence also raises a genuine issue of material
fact with respect to the post-July 1, 1990, claims. The
principal evidence on which Ford relies to survive sum-
mary judgment on those claims is copies of its EVMSSs.
The majority believes that the EVMSSs are insufficient to
preclude summary judgment because “[t]he presence of
these documents in Ford’s files shows only that the docu-
ments appeared in Ford’s files,” not that the EVMSSs
were submitted to the bank. Majority Op. at 12. That
inference is not the most favorable one to Ford, however.
The most favorable inference is that Ford submitted the
EVMSSs with its HMT payments to the bank. Many of
the EVMSSs are dated and signed under “penalties
provided by law,” and they identify Customs and a post
office box address in the “send to” field. A reasonable fact
finder could conclude that Ford would not have gone to
the trouble of preparing the EVMSSs, having a represen-
tative sign them under penalty, and inserting what ap-
pears to be Customs’s bank’s address unless Ford actually
remitted the documented payments to the bank. A rea-
sonable fact finder, therefore, could conclude that the
EVMSSs support Ford’s claimed entitlement to a refund
on its post-July 1, 1990, claims.
III
5 FORD MOTOR CO v. US
I do not suggest that Ford’s evidence conclusively es-
tablishes its right to a refund. The trial court would be
entitled to find at trial that Ford’s evidence does not
support its claim because, for example, Ford’s witnesses
are not credible on the stand, or other evidence proves
Ford’s quarterly HMT reports and EVMSSs unreliable.
Ford, however, is not required to conclusively establish its
case at the summary judgment stage. “[T]he issue of
material fact required by [Federal Rule of Civil Proce-
dure] 56(c) to be present to entitle a party to proceed to
trial is not required to be resolved conclusively in favor of
the party asserting its existence; rather, all that is re-
quired is that sufficient evidence supporting the claimed
factual dispute be shown to require a jury or judge to
resolve the parties’ differing versions of the truth at trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)
(quoting First Nat’l Bank of Ariz. v. Cities Service Co., 391
U.S. 253, 288-89 (1968)).
Ford has proffered sufficient evidence to withstand
summary judgment. It is entitled to have its witnesses
heard and its evidence considered at trial before a deci-
sion regarding its right to a refund is reached. “[A]t the
summary judgment stage the judge’s function is not
himself to weigh the evidence but to determine whether
there is a genuine issue for trial.” Id. By affirming the
trial court’s grant of summary judgment, the majority
prematurely decides this case on its merits.