What Every Multinational Should Know About … Securing Refunds for Finally Liquidated Entries

Many importers are understandably confused about the current status of International Emergency Economic Powers Act (IEEPA) tariff refunds for “finally liquidated” entries — that is, entries that are more than 80 days beyond liquidation and therefore fall outside Consolidated Administration and Processing of Entries (CAPE) Phase 1. The confusion is not surprising. Although the Court of International Trade (CIT) has ruled that refunds should be available for these entries, the Department of Justice (DOJ) has appealed the question of whether importers that did not file protective actions under 28 U.S.C. § 1581(i) are entitled to those refunds.

To help clarify the current landscape, we summarize below where things stand and offer practical guidance on what companies with significant amounts of tariff refunds tied to finally liquidated entries should be doing now.

Where Things Stand on Refunds for Finally Liquidated Entries

The CIT has now ruled that importers are entitled to refunds of IEEPA tariff payments on finally liquidated entries — generally, entries that are more than 80 days beyond liquidation and therefore cannot be processed through CAPE Phase 1. Those entries sit outside CAPE Phase 1 because, under U.S. Customs and Border Protection’s (CBP) current process, they cannot be handled administratively in that phase.

The refund landscape nevertheless remains unsettled because the DOJ has appealed the question of whether importers that did not file protective actions under 28 U.S.C. § 1581(i) are entitled to those refunds. DOJ’s position is that the CIT cannot under the statute order refunds for importers that never filed their own protective actions and that relief for finally liquidated entries accordingly must be limited to the plaintiffs that preserved their rights through litigation.

That dispute has created a practical split:

Importers that filed Section 1581(i) protective actions have a clearer path to refunds, but timing remains uncertain because CBP has not yet opened CAPE Phase 3 and has indicated that programming constraints are delaying implementation.
Importers that did not file protective actions face a much less certain path. They may ultimately prevail if the CIT’s view is upheld, but for now they are effectively waiting on the outcome of the Federal Circuit appeal (and potentially an additional appeal to the Supreme Court) to determine whether they will receive refunds on finally liquidated entries at all.

What Is Happening at the Federal Circuit?

The DOJ has appealed the issue of whether non-party importers — those that did not file protective actions — can receive refunds for finally liquidated entries. The appeal creates a direct conflict between the CIT’s ruling that refunds should be available to all affected importers and DOJ’s position that refunds should be limited to plaintiffs.

In practical terms:

If the DOJ prevails, non-filed importers may be unable to recover refunds for finally liquidated entries.
If the CIT’s position is upheld, non-filed importers should remain entitled to refunds, but only after the appeal is resolved, likely after substantial delay, including a potential appeal to the Supreme Court.

That means importers that did not file are now exposed to both timing risk and outcome risk.

Why Does This Matter?

This issue matters because finally liquidated entries represent a substantial set of claims that cannot be resolved through CAPE Phase 1 — and the category may be broader than many importers initially assume.

Although CBP often liquidates entries well after entry, many entries liquidate much earlier, including lower-value informal entries and entries affected by post-summary corrections. As a result, many companies may have a meaningful volume of entries that are already beyond the 80-day window and therefore fall into the finally liquidated bucket.

For those entries, the distinction between having filed a Section 1581(i) action and not having filed one may prove critical.

What About Importers That Already Filed?

Importers that filed Section 1581(i) protective actions are currently in the better position. The CIT’s rulings support refund relief for them, and CBP has indicated that finally liquidated entries will be addressed in CAPE Phase 3.

The current problem is operational, not legal. CAPE Phase 3 has not yet been opened because of CBP programming issues. So filed importers are still waiting, but they are waiting for implementation rather than for the courts to decide whether they qualify at all. Although CBP did not meet its earlier announced target of opening CAPE Phase 3 by August 20, 2026, we expect that CBP may be able to resolve its programming and testing issues relatively soon, potentially allowing CAPE Phase 3 to open for importers that filed Section 1581(i) actions shortly thereafter.

What About Importers That Have Not Filed?

Importers that have not filed are currently left to await the outcome of the appeal. For them, the issue is no longer merely administrative timing. It is whether the DOJ can lawfully deny refunds on finally liquidated entries to importers that did not preserve their claims through protective litigation.

Even if non-filed importers ultimately prevail, the process is likely to take a year or more. And if they lose, they may have no path to recovery for those entries at all. Accordingly, companies with substantial amounts of IEEPA refunds tied to finally liquidated entries should consider whether to file now to avoid the litigation and timing uncertainties created by DOJ’s appeal.

In particular, filing now may help companies:

reduce the risk that their refund rights will depend entirely on the outcome of the DOJ’s appeal;
avoid being grouped with non-parties whose rights remain contested;
improve their position for obtaining relief once CBP is able to open CAPE Phase 3; and
mitigate the prospect of extended delay while the Federal Circuit (and potentially the Supreme Court) resolve the dispute.

In that sense, a protective filing continues to function as an insurance policy. It does not require abandoning CAPE; instead, it expands the types of refunds that can occur through it. It preserves the importer’s own litigation position while the courts and CBP work through the current refund process.

What Should Importers That Filed Protests for Finally Liquidated Entries Be Doing?

Importers that have filed protests for finally liquidated entries should be reassessing that strategy in light of CBP’s and DOJ’s current positions.

CBP has been discouraging the use of protests as the vehicle for obtaining IEEPA tariff refunds. While protests may still serve as a useful mechanism for preserving rights, CBP’s position has been that CAPE — not the protest process — is the operative mechanism for actually issuing refunds.

That distinction matters even more now because the DOJ is simultaneously arguing that refunds for finally liquidated entries should occur through CAPE — but only for importers that filed protective actions in the CIT under 28 U.S.C. § 1581(i). In other words, an importer that relied on protests may find itself in an awkward middle ground: it may have taken steps to preserve its position, but not in the form the DOJ is now arguing is necessary to obtain relief for finally liquidated entries.

For that reason, companies that have been relying on protests should re-evaluate whether to file a Section 1581(i) protective action. A protest may help preserve issues, but it does not appear to place an importer in the same posture as a CIT plaintiff for purposes of the Government’s current theory of who is entitled to refunds through CAPE Phase 3.

A related issue arises for importers that have filed both protests and Section 1581(i) actions. For those companies, the prudent course for now is generally to maintain the protests while monitoring developments on CAPE Phase 3. But once CAPE Phase 3 opens, those importers should consider whether to withdraw their protests in order to allow the entries to proceed through CAPE. Our expectation is that, as with CAPE Phase 1, CBP will not permit importers to maintain open protests and simultaneously obtain refunds through the CAPE process.

Accordingly, importers with both protests and CIT filings should be planning now for how they will manage that transition if and when CAPE Phase 3 becomes operational. In practical terms, that means being prepared to evaluate whether particular protests should remain in place for preservation purposes or instead be withdrawn to facilitate payment through CAPE.

Conclusion

The current landscape for finally liquidated IEEPA refunds is clearer than it was a few months ago in one important respect: the CIT has ruled that those refunds should be paid. But in another respect, the landscape has become more complicated. The DOJ’s appeal has created a meaningful divide between importers that filed Section 1581(i) protective actions and those that did not.

For importers that already have filed, the principal issue is when CBP will be able to implement CAPE Phase 3. For importers that did not file, the issue is more fundamental: whether they will be entitled to refunds for finally liquidated entries at all, and how long they may have to wait for an answer.

Against that backdrop, companies with significant finally liquidated exposure should not assume that the existence of a favorable CIT ruling alone eliminates risk. They should be taking stock now of their entry universe, their filing posture, and whether additional steps — particularly the filing of a Section 1581(i) protective action — may be warranted. The same is true for companies that have relied on protests, or on a combination of protests and CIT filings, as they prepare for the eventual launch of CAPE Phase 3.

In short, the prudent course is to remain engaged, preserve optionality, and position the company to obtain refunds through CAPE as soon as that process becomes available.

If you would like more information about potentially filing a Section 1581(i) protective action or how to evaluate protests in light of CAPE Phase 3, please reach out to the authors or your Foley relationship attorney.

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Frequently Asked Questions

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: Will refunded IEEPA tariffs include interest?

Yes.

FAQ #4: 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 #5: 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 #6: 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.

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