What Every Multinational Should Know About … The Government’s IEEPA Federal Circuit Appeal
(And How Importers Can Head Off Its Attempts To Keep Billions of Dollars of Unlawfully Collected IEEPA Tariffs)
For months, the U.S. Government has signaled it would challenge the Court of International Trade’s (CIT) authority to require refunds of IEEPA tariff payments for “finally liquidated” entries (those more than 90 days after liquidation). That challenge has now arrived. In recent CIT filings and in its appeal to the U.S. Court of Appeals for the Federal Circuit (CAFC), the Government has argued that the CIT cannot order the return of finally liquidated IEEPA tariff payments, except for plaintiffs that have filed protective actions under 28 U.S.C. § 1581(i).
A version of this article was initially published as What Every Multinational Should Know About … the Government’s Appeal of Judge Eaton’s Universal IEEPA Tariff Refunds Order (and Why It Is Claiming It Can Keep Billions of Dollars of Unlawfully Collected IEEPA Tariffs) on June 11, 2026.
This position creates significant uncertainty for importers who have not filed protective actions at the CIT:
- The most immediate issue involves “finally liquidated” entries, with the U.S. Government arguing it can retain $30 billion or more in unlawfully collected IEEPA tariffs.
- The concern, however, is not limited to those entries. Other categories outside CAPE Phase 1, including reconciliation entries and entries involving antidumping or countervailing duty (AD/CVD) issues, may also face delayed, uncertain, or disputed refund treatment depending on how CAPE Phases 2 and 3 develop and the full arguments the DOJ chooses to raise on appeal.
More than 3,500 importers have already filed protective actions, but many more have not. Importers with a meaningful volume of entries more than 80 days past liquidation—or with substantial reconciliation or AD/CVD-affected entries — should consider filing a section 1581(i) protective action to preserve refund rights and potentially improve their position for earlier relief, if they have not already filed such actions.
What is the Status of the CIT’s Oversight of IEEPA Refunds?
In late May, Judge Eaton signaled increasing concern about the Government’s pace of complying with the CIT’s IEEPA refund orders. In response to the court’s requests for briefing, the Government stated on May 29th that it intended to appeal the refund orders as impermissible universal injunctions, arguing that the CIT cannot extend relief to non-parties that did not file protective actions under Section 1581(i). The Government also stated that, for finally liquidated entries, it would seek to limit relief to the named plaintiffs. The number of such entries continues to grow every day.
On June 3, the Government filed its appeals in the Federal Circuit, again pressing its universal-injunction argument. Then, at a June 9th hearing, a CBP representative stated that CAPE Phase 3 — covering, among other things, finally liquidated entries — will begin processing refunds, but only for importers that filed Section 1581(i) actions.
The net result is straightforward: importers that have filed Section 1581(i) protective actions are best positioned to recover their full IEEPA refunds. Importers that have not filed are likely, at a minimum, to face significant delays while the appeals process unfolds. Depending on the ultimate outcome, they may not recover certain refunds at all.
What is Happening at the Federal Circuit?
It is not yet clear how the Federal Circuit will resolve the Government’s appeal of the CIT’s refund orders. The Government will rely heavily on Trump v. CASA, 606 U.S. 831 (2025), arguing that Judge Eaton’s orders are impermissible universal injunctions because they extend relief beyond the named plaintiffs. The Government also likely will argue that any importer has an adequate remedy by filing its own Section 1581(i) action.
Plaintiffs, by contrast, are likely to argue that CASA does not control because the CIT is not an ordinary district court, and its customs jurisdiction is closely tied to the administration of a uniform tariff regime. From that perspective, requiring CBP to refund unlawfully collected tariffs on a uniform basis is not an improper extension of relief to non-parties, but a necessary consequence of the court’s role in supervising the lawful administration of customs duties. Plaintiffs are also likely to argue that limiting refunds for finally liquidated entries to importers that filed Section 1581(i) actions would undermine the constitutional and statutory requirement of uniformity by allowing the Government to retain unlawful tariff payments from some importers while refunding identical payments to others.
Plaintiffs may also argue that the statutory rules barring refunds of “finally liquidated” entries do not apply in this context at all, as that statutory restriction presupposes any tariff collection was lawful. Here, however, the Supreme Court has ruled the opposite. That creates a substantial argument that the usual rules governing finality of liquidation do not control, or at least cannot override the Supreme Court’s merits ruling.
Another potentially important distinction is that this case does not present the usual concern associated with nationwide or universal injunctions. In the ordinary case, the objection is that a single trial court is effectively making national policy before the merits have been finally resolved. Here, by contrast, the CIT is the only court that can ever consider the IEEPA refunds issue, meaning any ruling is automatically universal.
In practical terms, the appeal divides importers with non-Phase 1 refund claims into two groups: those that have filed protective actions and those that have not. Importers in the latter category may face material delays, additional administrative obstacles, and potentially the loss of refunds for finally liquidated entries or other categories outside CAPE Phase 1.
Why Is the Set of Finally-Liquidated IEEPA Tariff Entries Important?
In some respects, the Government has moved surprisingly quickly to implement refunds. It has represented that more than $95 billion of the approximately $166 billion in IEEPA tariff payments has already been queued for refund through CAPE. The problem is that the entries the Government is now contesting consist of those liquidated more than 80 days ago (90 days minus a ten-day buffer) and are therefore “finally liquidated” under the Government’s current view of CAPE Phase 1.
At first glance, that category might appear relatively narrow because CBP often liquidates entries approximately 314 days after importation. In practice, however, CBP frequently liquidates entries much sooner than 314 days after importation, particularly for lower-value informal entries or those where companies filed post-summary corrections.
As a result, for many importers, the universe of entries more than 80 days past liquidation is much broader than it first appears.
Bottom Line — What Should Importers Do Now to Best Preserve IEEPA Tariff Refunds?
Importers that have not filed protective actions under 28 U.S.C. § 1581(i) may face substantial delays — or potentially no recovery at all — for certain categories of IEEPA tariff refunds outside CAPE Phase 1. Against that backdrop, the most prudent course is twofold: continue pursuing refunds through CAPE, but also consider filing a protective Section 1581(i) action.
The same analysis applies to reconciliation entries and entries involving AD/CVD issues. Although such entries may be addressed in CAPE Phase 2, the timing and scope of that relief remain uncertain. There is also risk that disputes over those categories could become entangled in the Government’s broader appellate arguments about the availability of relief for non-parties. A protective Section 1581(i) action may therefore offer an additional advantage by putting importers in a better position to seek earlier or more targeted relief.
A protective Section 1581(i) action does not require an importer to abandon CAPE or assume that full litigation will be necessary. Rather, it functions as an insurance policy, preserving the importer’s own claim while the courts decide whether the Government can lawfully withhold refunds from non-parties for finally liquidated or otherwise excluded entries.
If you would like more information about potentially filing a Section 1581(i) protective filing, please reach out to the authors or your Foley relationship attorney.
Frequently Asked Questions: Preserving the Right to IEEPA Tariff Refunds
FAQ #1: What are the IEEPA tariffs, and how can companies determine how much they paid?
The IEEPA tariffs were imposed by the Trump Administration in 2025 under the International Emergency Economic Powers Act (IEEPA). These tariffs included:
- Fentanyl-related tariffs announced in February 2025 on China, Mexico, and Canada;
- Global and reciprocal tariffs announced in April 2025 (“Liberation Day”) addressing trade imbalances; and
- Country-specific tariffs announced later in 2025 on India and Brazil.
Although the Supreme Court directly reviewed only the first two tariff programs, the logic of the Court’s decision—that IEEPA does not authorize broad-based tariffs—likely has implications for all tariffs imposed under IEEPA.
Importantly, IEEPA tariffs do not include:
- Section 232 sectoral tariffs (e.g., steel, aluminum, copper, lumber, automotive tariffs);
- Section 301 tariffs on China;
- antidumping or countervailing duties; or
- the normal HTS tariffs in Chapters 1–97.
Companies can determine their IEEPA tariff exposure by reviewing data in Customs’ Automated Commercial Environment (ACE). This typically involves running reports beginning February 1, 2025 and filtering for entries containing the relevant Chapter 99 tariff provisions associated with IEEPA measures (such as 9903.01.xx or 9903.02.xx).
If a company does not have ACE access, its customs broker can typically generate the necessary reports.
FAQ #2: What is the deadline to file a §1581(i) action?
Section 1581(i) actions are generally subject to a two-year statute of limitations under 28 U.S.C. § 2636(i). But there is significant uncertainty as to when that period begins to run, including whether it could be tied to:
- the date duties were paid;
- the date of liquidation; or
- the date of the Supreme Court’s decision.
Because the Government may raise timeliness defenses under any of these theories, importers should consider filing sooner rather than later.
There is also a separate timing concern: Section 1581(i) is a residual jurisdictional provision and may become unavailable if another avenue of review is deemed adequate. For that reason, waiting may create additional risk. The safest course for importers that want to preserve judicial options is to evaluate protective filing promptly.
FAQ #3: Can companies still recover refunds if their entries have already been liquidated?
Possibly, but liquidation creates additional risk. Ordinarily, liquidation makes duties final and conclusive unless the importer files a timely protest. In the IEEPA litigation, however, the CIT has indicated that, at least for importers that filed Section 1581(i) actions, the court may have authority to order relief even for liquidated entries.
The greatest concern now is with finally liquidated entries—that is, entries liquidated more than 90 days earlier, or more than 80 days earlier under CBP’s current CAPE framework. The Government has expressly argued that refunds for those entries should be limited to importers that filed protective Section 1581(i) actions.
That issue is particularly important because the universe of finally liquidated entries is larger than many companies assume. CBP often liquidates entries more quickly than the outer statutory timeline, especially for lower-value or informal entries, and post-summary corrections can also accelerate liquidation.
FAQ #4: Will refunded IEEPA tariffs include interest?
Yes.
FAQ #5: What information is required to file a §1581(i) action?
A typical filing includes a summons, complaint, and supporting disclosures. To complete the filing, importers generally must provide:
- the identity of the importer and its principal place of business;
- the importer’s corporate ownership structure, including publicly held parent companies and affiliates;
- identification of any real party in interest, if different from the importer;
- whether the importer has requested extensions of liquidation from CBP; and
- whether the importer has filed post-summary corrections or protests relating to IEEPA entries.
FAQ #6: What happens if an importer does not file a protective action?
An importer that does not file may face substantial uncertainty. At a minimum, it may have to wait while the Federal Circuit and potentially the Supreme Court address the scope of the CIT’s refund authority. More specifically, it may face:
- the risk that refunds will be limited to parties before the court;
- additional complications arising from liquidation finality;
- delays or uncertainty as to reconciliation and AD/CVD-related entries; and
- reliance on administrative refund mechanisms that may be incomplete or delayed.
In the worst case, an importer that does not file may be unable to recover certain refunds at all.
FAQ #7: Can non-importers of record recover IEEPA tariffs?
Generally, only the importer of record has standing to obtain duty refunds directly from CBP. That said, other parties that ultimately bore the economic burden of the tariffs may have contractual or commercial arrangements with the importer regarding the allocation of any refund recovery.
The Foley International Trade & National Security Practice
The Foley International Trade & National Security Team covers the full gamut of international trade needs, including for tariffs, customs, supply chain/supply chain integrity, trade remedies/antidumping/countervailing duty, export controls, economic sanctions, and CFIUS national security filings. Our Tariff & International Trade blog regularly publishes practical guidance, like this client alert, on all international trade topics and compiles it by topic area on the Foley Tariff & International Trade Resources blog. Click Here To Register for our email list to receive future emails and practical international regulatory compliance tips, including our What Every Multinational Should Know articles.
