To File or Not to File: Contesting IEEPA Tariffs in Court

Dozens of importers have filed suit in the Court of International Trade (CIT) to preserve their rights to tariff refunds, citing concerns that they may not be guaranteed a refund even if the US Supreme Court rules the tariffs are unlawful. Others may now be considering whether they should also file suit, and whether their rights to refunds may be reduced or eliminated based on actions taken or not taken.

The case pending in the Supreme Court concerns tariffs imposed under the International Emergency Economic Powers Act (IEEPA) based on declared national emergencies concerning the influx of drugs and migrants across the US border and global trade imbalances (the IEEPA tariffs). Both the CIT and the Court of Appeals for the Federal Circuit determined that US President Trump exceeded his authority in imposing the IEEPA tariffs, and the Supreme Court heard oral argument on November 5, with a decision anticipated in early 2026.

BACKGROUND ON IMPORTATION OF MERCHANDISE

When a shipment arrives at a port in the United States, the importer of record, generally through a licensed customs broker, files entry documents relating to the goods with US Customs and Border Protection (CBP). Imported goods are not legally entered until the shipment has arrived within the port of entry, CBP has authorized delivery of the goods, and estimated duties have been paid.

Liquidation is the process by which an entry summary becomes final and CBP determines the closing assessment of duties, typically based on the information in the entry summary. Most liquidation occurs within 314 days of entry absent an extension or suspension. So, while duties owed have been calculated, they will not become finally due to CBP until the entry has liquidated.

Liquidation is also an important marker for addressing customs decisions. For entries that have not yet liquidated, the importer may submit post-summary corrections (PSC) to adjust entry summary data presented to and accepted by CBP on the CBP Form 7501, such data as to the classification, valuation, or origin of merchandise. Importers may file PSCs to remove relevant Chapter 99 classifications that impose IEEPA tariffs for entries that have not liquidated at the time of any final court determination.

For those entries that have liquidated within the previous 180 days, the importer may submit a protest, which is an administrative contest of a CBP decision related to imported goods. A protest may also be filed against other customs decisions like the classification or liquidation of merchandise, the exclusion of merchandise, and disallowance of drawback, among a few others. However, there is a question of whether the imposition of these IEEPA tariffs is a protestable decision, so liquidation is a critical point.

IEEPA TARIFF REFUNDS

There are several questions that may arise from the Supreme Court’s opinion, including whether any refunds will extend to all importers or only to the named plaintiffs. One question that may arise is whether the importer or its designee may have some affirmative obligation to seek a refund, or whether the Court may obligate the government to remedy its own wrongs based on previously provided import information. As each IEEPA tariffs program is associated with a specific subheading within Chapter 99 of the Harmonized Tariff Schedule of the United States (HTSUS), it would be relatively straightforward to determine the amount of refunds associated with such classifications.

DIRECT ENGAGEMENT WITH CBP

It remains to be seen whether the courts will require an importer to engage directly with CBP to effectuate any refund. There is recent precedent for CBP’s refunding tariffs through importer request, following the issuance of the anti-stacking order as applied to the IEEPA Mexico and Canada tariffs and the Section 232 tariff programs. For that program, importers must have taken affirmative steps to request a refund from CBP through completing a PSC for any unliquidated entries or by filing a protest for any liquidated entries still within the 180-day window. Given the timeline of the imposition of the tariffs and the adjustments made by the anti-stacking order, CBP was not concerned with entries having liquidated (typically 314 days after entry) and existing outside of the protest window (180 days after liquidation).

That may not be the case for all of the entries subject to IEEPA tariffs, which may have liquidated at the time of any resolution unless liquidation has been suspended or extended. As the recent complaints highlight, some entries subject to the IEEPA tariffs have begun to liquidate now, which means that the 180-day clock has begun to run. CBP can deny a request for the extension of liquidation, as importers have begun to experience. While the payment of the IEEPA tariffs appears protestable as such protests relate to the “classification, rate, and amount of duties chargeable” (19 USC § 1514(a)), the protest procedures arguably do not apply.

The CIT has repeatedly held that when CBP’s actions are ministerial and not decisional, the matter is not subject to protest. For instance, in the application of antidumping and countervailing duties, CBP’s role is ministerial as it cannot change the rate and amount of AD/CVD chargeable, and the collection of those duties by CBP is not protestable. LDA Incorporado v. United States, 79 F Supp 3d 1331, 1339 (CIT 2015); but see Shinyei Corp. of Am. v. United States, 35 CIT 666, 672 (2011) (“Here, Customs interpreted Commerce's instructions, rather than automatically applying an antidumping duty rate. The act of interpretation is not purely ministerial.” (internal citations omitted)). There may be an argument that CBP’s various guidance implementing the IEEPA tariffs is not purely ministerial, though it still seems unlikely that the Court would effectively cut off an importer’s ability to recover illegally imposed tariffs based on failure to file a protest.

The Court may follow the same process in this case, allowing for PSCs and protests depending on the liquidation status of affected entries. This could end up being a long and drawn-out process given the number of importers that would be requesting refunds and the resources CBP would expend to process refunds. Importers may consider requesting accelerated disposition pursuant to 19 CFR § 174.22, which allows for review of a protest in 30 days. However, failure to respond to such a request for accelerated disposition is deemed a denial of the protest, which is then appealable to the CIT. The CIT could then order that the protest be granted, though the overarching issue of CBP resources to effectuate the refunds remains. Importers would almost certainly prefer that the Court order CBP to refund the IEEPA tariffs with interest administratively.

COURT AUTHORITY TO ISSUE REFUNDS

The CIT has addressed its ability to direct relief of duties paid with interest in J. Conrad Ltd. v. United States, 457 F Supp 3d 1365 (CIT 2020), a case challenging Section 232 duties. In that decision, the CIT explained how it has authority to order the appropriate relief regardless of the finality of an entry’s liquidation, finding that “this Court may award any form of relief appropriate in a civil action, id. § 2643(c)(1), including, generally, a money judgment against the United States in a civil action commenced under 28 U.S.C. § 1581.” The finality of an entry’s liquidation is “no bar to the Court’s ordering appropriate relief.” We would expect the same authority to extend to the Supreme Court, though this decision was issued before the Supreme Court’s universal injunction ruling, which may complicate this process.

The government is likely to push for some affirmative action on the part of the importers before it is responsible for issuing any particular refund. As this would involve an overwhelming amount of work for importers and their brokers, we would expect this to be heavily challenged.

TO FILE OR NOT TO FILE

Each importer will have different considerations to weigh that will impact whether and when they choose to file suit. If an importer is importing goods from origin Canada, Mexico, or China, which have been subject to IEEPA trafficking tariffs since February 2025, liquidation may be fast approaching. On the other hand, if goods are coming from elsewhere, they may not have become subject to the IEEPA reciprocal tariffs until April 2025, and liquidation may be a bit farther off. If several entries are expected to liquidate in the near term and account for a significant amount of IEEPA tariffs paid, an importer may be more inclined to file suit.

An importer’s decision whether to file should consider the timing of their entries and anticipated dates of liquidation and the amount of IEEPA tariffs associated with those entries as compared with the resources needed to file suit in the CIT.

An additional consideration may be downstream claims for tariff refunds from customers who may have been charged for tariffs or engaged in tariff risk sharing, but who were not importers themselves. Companies should scrutinize their commercial contracts to determine whether, and how, those agreements allocate responsibility for pursuing refunds, and to ensure they understand any associated rights or obligations.

Beyond the formal contractual requirements under which a company may be obligated to pay some of its IEEPA tariff refunds to another party, there are consumer protection considerations under state and federal law. If a company has represented in its public statements—other than in marketing materials—that its price increases are the result of tariffs imposed on imported goods and those tariffs are later refunded, there may be allegations of unfair or deceptive acts or practices or price-gouging under applicable laws. These factual evaluations are conducted on a case-by-case basis, and the laws are broad-based across multiple agencies such as the Federal Trade Commission and by state attorneys general.

HOW WE CAN HELP

Our global international trade team and commercial litigators are closely monitoring tariff developments and can assist clients with the following:

• Assessing imports subject to IEEPA tariffs and evaluating the various considerations in preserving an importer’s right to IEEPA tariff refunds;
• Preparing PSCs and protests to address IEEPA tariff refunds;
• Filing suit in the CIT to address IEEPA tariff refunds; and
• Assessing how existing contract language allocates tariff-related risks, including the right to any potential refunds.

For more information, please refer to our prior thought leadership:

• Courts Invalidate President’s IEEPA Tariffs, But Stays Keep Duties on Imports—for Now
• Staying Resilient Amid Global Tariff Uncertainty
• Tariff-Related Commercial Litigation: What Businesses Need to Know About Force Majeure Clauses & Common Law Defenses

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