Written by Susan Kohn Ross

IEEPA Tariffs – CAPE and Next Steps

All importers are anxious to get the IEEPA[1] duties paid refunded. However, there are some legal issues working their way through the system which are causing somewhat understandable delays. The most significant issues are which entries are eligible for CAPE refunds? Why does Customs and Border Protection (“CBP”) say it is not legally able to refund all the monies tied to entries which are “finally” liquidated? When will the pending court cases go forward? Does it make sense to file protests?

Right now, there are two (2) key cases in which IEEPA refund activity is being decided. One is Euro-Notions Florida, Inc. v United States, Court of International Trade Case No. (CIT) 25-00595 (2025) and the other is V.O.S. Selections, Inc. et al v United States, CIT 25-00066 (2025).[2] The Euro-Nations case is on appeal at the Court of Appeals for the Federal Circuit. See Case No. 26-1898, filed June 2, 2026.

When the original decision ordering refunds of all the IEEPA duties paid was published in Atmus Filtration, Inc. v United States, CIT 26-1259,[3] the response of Customs and Border Protection (“CBP”) was to create CAPE as a means for importers to file their own claims or have them filed by their customs brokers. CAPE, of course, is the acronym for Consolidated Administration and Processing of Entries platform. From the outset, the entries eligible for refund claims have been defined by CBP as those which are not yet liquidated and those which are within 80 days of the date of liquidation. The reason for the 80 days post-liquidation time limit is tied to 19 U.S.C. § 1501 which permits CBP 90 days post-liquidation to re-evaluate and correct any prior liquidations.

There are two (2) individuals at CBP whose declarations are key to understanding where things stand. For the most part, CBP has relied on multiple declarations signed by Brandon Lord, who is the Executive Director, Trade Programs Directorate, Office of Trade and have been filed in the Euro-Notions case. In the V.O.S. case, the judge ordered the appearance of CBP Commissioner Scott. Whether or not Commissioner Scott would appear quickly became a matter that was appealed. When the appeal court ordered others from CBP should appear in his stead, with the court’s approval, CBP relied on the Declaration of Susan Thomas, who is the Executive Assistant Commissioner, Office of Trade. Between the various declarations, we have learned some interesting facts and also gotten some clarity as to what makes the most sense for importers to seek their refunds.

Mr. Lord’s declaration filed on June 10, 2026 (the latest one) states that 125,576 CAPE declarations have passed validation, meaning have been accepted. Those claims involve 16.74 million entries, of which 10.60 million have been processed and the IEEPA duties have been approved for refund[4]. The amounts approved subject to refund total $23.68 billion of the $166+ billion collected.[5]

From EAC Thomas’ declaration filed on June 4, 2026, we learned the following. Entries subject to reconciliation (but for which the reconciliation entry has not yet been filed) will be eligible for CAPE refunds during the next round of programming, the so-called Phase 2 claims and begins on June 29, 2026. To be able to proceed with this timeline, CBP also says it will need each importer of record’s number approximately two (2) weeks prior to deployment.

CBP has also said any importer whose entries have finally liquidated and who has not filed its own claim at the CIT will NOT be eligible for a refund unless and until there is a court order in favor of such importer to receive any IEEPA refunds. CBP says this issue is on appeal and so until it is settled, CBP will not expand CAPE in this context. The only additional expansion of CAPE that CBP is anticipating is for importers who have cases filed at the CIT. The key issue for many importers is how all IEEPA duties will be refunded as many of their entries are finally liquidated. CBP has taken the position it has no legal basis to make these refunds absent a court order in favor of the individual importers. Hence, the appeal.

To this point, drawback, entries flagged for reconciliation where the reconciliation entry has been filed, entries under protest, entries not filed in ACE (e.g., postal service entries) and those subject to antidumping and/or countervailing duty (“ADCVD”) are not eligible for CAPE refunds. Any ADCVD entries cannot be liquidated until the underlying ADCVD case is finalized. As such, CBP needs instructions from the Dept. of Commerce in order to liquidate or reliquidate the ADCVD entries. However, these entries could be processed in CAPE to eliminate the IEEPA duties paid, even while CBP has yet to explain the process that will apply. Typically, with a CAPE claim, the refund is approved and processed and the entry liquidated or reliquidated. So, how that will work with ADCVD entries remains a mystery!

While those familiar with the entry process have long understood that CBP could create a program that identifies the relevant tariff numbers and causes the refunds to be automatically issued, CBP states repeatedly it is worried about fraud and other revenue risks.

Complicating things further is language in United States Cane Sugar Refiners’ Ass’n v. Block, 3 CIT 196, 544 F. Supp. 883, 887 (Ct. Int’l Trade 1982) cited with approval in Thomson Consumer Elecs., Inc. v. United States, 247 F.3d 1210, 1215 (Fed. Cir. 2001):

Requiring Thomson to exhaust its administrative remedies by filing a protest would be an insistence of a useless formality and inequitable. The court cited United States Cane Sugar, 544 F. Supp. 1215, holding that because Customs officials could not override a presidential proclamation requiring exclusion from entry into the United States of any sugar in excess of a specified quota, and because those same officials could not rule on the validity of that presidential proclamation, the plaintiff was not required to obtain a protestable decision and thus, section 1581(i) jurisdiction could be invoked.

The court’s broader reasoning was that Customs is powerless to perform any active role in the determination of the constitutionality of an assessment since it cannot rule on the validity of an Act of Congress. The same logic extends to presidential proclamations and executive orders — because Customs has no authority to override or invalidate them, filing a protest against action taken pursuant to such authority would be futile and is therefore not required.

            …

Plaintiffs here challenge the legality and constitutionality of Executive Orders issued by the President. In such a case, a section 1581(a) protest would be futile because “all that Customs is authorized to do is collect the” duty. [citation omitted] Because Customs has no authority to make any decision regarding the legality or constitutionality of the Executive Orders at issue, this court has jurisdiction pursuant to 28 U.S.C. 1581(i) rather than 1581(a), and liquidation of the entries at issue is not final under 1514.

In plain English, what this means is filing a protest may well be a futile step which can be avoided! When one files a protest, the challenge is to a decision made by CBP. However, in these circumstances, there is no decision by CBP so there are no grounds on which to protest a CBP decision. As such, filing a complaint under 28 U.S.C. § 1581(i) is the solution for all importers who want their monies refunded on all the entries where liquidation is final, meaning beyond the 90 days provided in 19 U.S.C. § 1501 as discussed above. 19 U.S.C. § 1514 is the protest statute. When a protest is denied, it can be appealed to the CIT pursuant to 28 U.S.C. § 1581(a). § 1581(i) is the statute which grants the CIT authority in other types of cases.[6]

Whereas there were many questions in the past about how the IEEPA duties would be refunded, we now know:

1. If your entry is not yet liquidated, file a CAPE refund claim;
2. If your entries are liquidated but the date of your CAPE refund claim is 80 or fewer days from date of liquidation, you may seek the refund via CAPE.
3. It is deemed a futile act to file a protest against the assessment of any IEEPA tariffs on any entries, but should you file protective protests?
4. Get your complaint on file at the CIT before the end of January 2027.

CAVEAT: Right now, all the IEEPA complaints are suspended per general court order. The court is waiting to see how the issues work themselves out. So, filing the complaint puts you in line to seek recovery, but does not speed up the refund process.

CAUTION: If you know the underlying entry/ies has/have errors, fix those errors first. CBP has strongly inferred it is using the CAPE data for enforcement purposes. So, unless you are sure your entry as originally filed was correct, filing a CAPE entry for the IEEPA refund could cause more hardship than fixing the entry/ies first via a Post Summary Correction, and then filing via CAPE for the IEEPA refund. Depending on the circumstances, a prior disclosure may also be in order before the CAPE refund is sought.

The original imposition of the IEEPA tariffs was the result of Executive Orders 14193, 19194 and 19195 published on February 1, 2026. They imposed IEEPA tariffs on Canada, Mexico and China. The IEEPA reciprocal tariffs were imposed under Executive Order 14257 on April 2, 2025. Do not wait until the last day. Get your complaint filed before the end of January 2027!

PROTESTS: The general feeling among the legal community is there is nothing to protest given CBP is simply enforcing the relevant executive orders issued by the President and there are prior court decisions in accord. That having been said, there remains the concern a court at some level could enter an order holding one means of receiving a refund is by a granted protest AND the failure to protest is a waiver of that refund right. So, as a result, it may be prudent to file a protective protest, even while it remains doubtful such an order would be issued given existing legal precedent. This becomes a business decision for each importer to make based on its own circumstances.

Given the ever-changing landscape, it has been impossible to keep everyone updated on a regular basis. As such, for day-to-day changes, check Su Ross’ LinkedIn page (hyperlinked).

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[1] IEEPA stands for the International Emergency Economic Powers Act. (Pub. L. No. 95-223, 91 Stat. 1626) which was enacted in 1977.

[2] This case was consolidated with Learning Resources (see Footnote 3) and so, at the U.S. Supreme Court, the title was Trump v. V.O.S., see Trump v. V.O.S. Selections, Inc., 607 U.S. ___ (2026), decided February 20, 2026.

[3] The original order finding the IEEPA duties illegal was, of course, Learning Resources, Inc. v. Trump, 607 ___ (2026), 2026 WL 477534 (U.S., Feb. 20, 2026) by the U.S. Supreme Court.

[4] The reason for the odd language is that CBP approves the refund requests, but the Dept. of Treasury issues the actual refunds. So, be careful, if you otherwise owe the U.S. government money, you can expect the refunds to be offset against any outstanding debts owed to the U.S. government.

[5] There are many approved refunds wherein the Dept. of Treasury has not been able to issue the refund due to lack of importer information, and many more which are still in process or are to be claimed.

[6] The exact language of 1581(i) reads: “(1)In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)–(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for—

(A) revenue from imports or tonnage;

(B)tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;

(C)embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or

(D) administration and enforcement with respect to the matters referred to in subparagraphs (A) through (C) of this paragraph and subsections (a)–(h) of this section.