U.S. Signals It Will Appeal Court Order On Tariff Refund Process: Parties May Need To Take Action To Preserve Rights On Certain Entries

Lewis Brisbois is closely monitoring the refund process for tariffs paid under the International Emergency Economic Powers Act (“IEEPA”), which the Supreme Court ruled unlawful in February 2026 (see previous alerts). In April 2026, in response to an order from the Court of International Trade (“CIT”), Customs and Border Protection (CBP) announced an automated system (“CAPE”) to process refunds. The system opened for refund applications on April 20, 2026, allowing importers of record and customs brokers to file for tariff refunds on entries that are (1) unliquidated or (2) within 80 days of liquidation. While some importers have begun receiving refunds, observers have been waiting to see whether the U.S. government would appeal any part of the CIT-ordered refund process by the June 6 deadline. The U.S. is now signaling it will challenge part of the order, and this move will have significant implications for some categories of refund applications.

Background

In a motion filed on May 29, 2026 in the CIT, CBP noted that is has processed approximately $85 billion in refunds for entries that are unliquidated or nonfinal. Shifting a key position on entries that have been finally liquidated, however, CBP is now arguing that, “once an entry is finally liquidated, CBP has no authority to reliquidate or refund money without a court order.”

While CBP previously indicated that entries falling outside of those two categories might eventually be integrated into the CAPE system, it now argues that refunds for all entries that have been finally liquidated must be “handled through importer-specific orders requiring reliquidation…” In other words, if an importer of record paid IEEPA duties on entries that have been finally liquidated, each individual importer will need to file a complaint in the CIT to have those entries reliquidated and receive a refund. In addition to claiming its own lack of authority in these circumstances, CBP is also now challenging the CIT’s authority to issue a universal injunction requiring refunds for companies that have not filed claims. This is the first indication from the government that filing a formal civil complaint may be necessary for importers to receive full refunds where liquidation has already occurred.

Practical Implications and Steps to Take

Those most affected by this update include importers who have not filed a complaint or protest and who are counting on universal relief to reach non-claimants as well as importers with finally liquidated IEEPA duties. If the new U.S. position prevails, importers falling into these categories will likely be required to file formal complaints in the CIT in order to preserve their rights to receive refunds. In all likelihood, the imminent U.S. appeal will press this position, and it will take some time for this new dispute to work its way through the courts and reach resolution. Companies would be well-advised to review their records to determine which entries, if any, are finally liquidated. Liquidation starts the 180-day deadline to file a protest challenging the duties, a necessary step in preserving refund rights. The CIT has scheduled a hearing on these issues for June 9, and the path forward should become clearer as a result of that proceeding, but companies with entries more than 80 days past liquidation should be considering filing an individual court action to protect their rights to a refund.

Key Takeaways

Refunds may not be universal, as originally anticipated, and importers may be required to file individual claims in the CIT to receive a refund of IEEPA duties for entries that are finally liquidated. Importers should be prepared to act by confirming liquidation status for entries subject to IEEPA duties, preparing the necessary documentation, and evaluating whether to individually pursue relief via an administrative protest and by filing as necessary a claim in the Court of International Trade.

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