By Dyana Mardon, Cameron A. Secord, and Robert L. Soza
Key Takeaways for Importers
- The U.S. Government, through the Department of Justice (“DOJ”), has formally appealed the Court of International Trade’s (“CIT”) order that required universal IEEPA tariff refunds (“Refund Order”), arguing that refunds for “finally liquidated” entries require importer-specific court orders.
- Non-litigant importers face the greatest risk—and the two-year deadline to file suit is running. Waiting to see how the appeal plays out could mean losing the right to seek a refund altogether.
- The DOJ intends to seek a stay of the Refund Order pending appeal and if granted, refunds for finally liquidated entries could be halted for non-litigants entirely.
As we discussed in our prior publications (Supreme Court Rules IEEPA Does Not Authorize Tariffs and How Companies Can Protect Their Rights to IEEPA-based Tariff Refunds), the Supreme Court’s February 20, 2026 decision in Learning Resources, Inc. v. Trump held that IEEPA does not authorize the President to impose tariffs, and importers have since pursued various paths to recover the unlawfully collected duties. In this update, we address a critical new development: the DOJ’s appeal of the CIT’s Refund Order.
Background: The CIT’s Refund Order
Following the Supreme Court’s decision in Learning Resources, Inc. v. Trump, the CIT ordered U.S. Customs and Border Protection (“CBP”) to implement a system for refunding IEEPA tariffs. The Refund Order directed CBP to refund IEEPA duties across three categories of import entries: (1) entries that have not yet been finalized (or in CBP parlance, “liquidated”) by CBP; (2) entries that have been liquidated but are still within the 80-day window where CBP can voluntarily reprocess them; and (3) entries that are both liquidated and past the 80-day window in which CBP can voluntarily reprocess them.
In response, CBP developed the Consolidated Administration and Processing of Entries (“CAPE”) system, which was designed to administer IEEPA refunds on a mass scale. As of May 27, 2026, CBP reported that it was in the process of refunding approximately $85 billion in IEEPA tariffs.
The Government’s Appeal
On June 2, 2026, the DOJ filed a Notice of Appeal to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) challenging the CIT’s Refund Order (the “Appeal”). Specifically, the DOJ contests the CIT’s authority to require CBP to issue IEEPA refunds on entries that are both liquidated and past the 80-day window in which CBP can reprocess them.
The DOJ previewed its arguments in its May 29, 2026, court filing. In short, the DOJ intends to challenge the Refund Order on two main fronts: (1) CBP cannot reprocess older entries without a court order specific to each importer (and in order for that to happen, each importer seeking refunds must file a lawsuit in the CIT); and (2) the Refund Order is an overly broad “universal injunction” that exceeds what the CIT is allowed to order. These arguments, and possibly others, will inevitably be fleshed out when the DOJ files its official appellate brief.
What the Appeal Means for Importers
The DOJ’s Appeal adds even more uncertainty to the IEEPA tariff refund process. While it does not immediately halt refunds already in progress, it guarantees that refunds for older entries—those past the 80-day window—will be subject to the outcome of this appellate battle.
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Importers Who Have Already Filed Suit at the CIT
The DOJ’s Appeal does not require immediate action for the nearly 4,000 importers who have already filed lawsuits in the CIT, but it raises a question about whether even these importers will need individual court orders to obtain refunds for their older entries.
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Importers Who Have Not Yet Filed Suit
For importers who have not filed suit, the stakes are significant. The DOJ’s position is that these importers must file a lawsuit at the CIT—and obtain their own court order—to secure refunds for entries past the 80-day window. Importers should closely review the dates their entries were liquidated to assess which entries fall into this category. Depending on how many entries are impacted and the value of IEEPA duties (plus interest), it may be worth filing a lawsuit.
Timing is essential: the two-year deadline to file suit is already running. The CIT’s authority to hear tariff refund cases has a two-year time limit. The deadlines for importers whose entries were among the earliest to be hit with IEEPA duties (starting in early 2025) will begin to expire in early 2027.
Importers who adopt a “wait and see” approach to the Appeal risk losing their right to seek a refund entirely if the two-year window closes before they file suit.
In other words, if the Federal Circuit agrees with the DOJ that the Refund Order was improper, importers who have not filed suit may be left without any way to recover their money.
Looking Ahead
Importantly, the Government’s appeal targets only refunds for entries past the 80-day window. Refunds for newer entries—those not yet liqudated or still within the 80-day reprocessing window—should continue to be processed through CBP’s CAPE system even as the Appeal proceeds. However, CBP’s planned expansion of CAPE to process older entries is now uncertain.
The Appeal will likely take months to resolve. In the meantime, the DOJ has indicated it will ask the Federal Circuit to pause the Refund Order as to entries that are both liquidated and past the 80-day window in which CBP can reprocess them, except for such entries made by importers who file their own lawsuits in the CIT. If that pause is granted, refunds for older entries could be halted entirely for importers who have not filed suit—reinforcing the importance of taking action now if significant money is at stake.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For more information, please contact a member of the National Security and International Trade practice.
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