The Supreme Court is considering whether the International Emergency Economic Powers Act (IEEPA) tariffs are illegal, with a ruling expected in the coming months. Yet, as you may have seen in the news, a number of companies have filed their own lawsuits against U.S. Customs and Border Protection (CBP) in the Court of International Trade (CIT), requesting that it (1) find that the subject IEEPA tariffs are illegal, (2) enjoin CBP from imposing additional IEEPA duties, (3) grant the plaintiffs a full refund on IEEPA duties paid and those it will continue to pay (presumably while the suit is pending), and (4) grant a preliminary injunction suspending the liquidation of entries subject to these tariffs.   
  
If the Supreme Court rules in favor of the importers, it is possible the Court will explain how refunds are to be obtained or that CBP will establish a process for obtaining such refunds. But absent such guidance, it is not entirely clear what an importer must do to obtain a refund. Given that uncertainty – including whether relief must be sought before liquidation and whether a protest is required – we recommend that importers consider the following: 

• For entries that have not liquidated, importers can file suit pursuant to 28 U.S.C. § 1581(i) and immediately seek a preliminary injunction prohibiting liquidation. This statute grants the CIT jurisdiction over civil actions related to tariff matters (such as those related to IEEPA). This includes seeking preliminary injunctions. The reason a party may file suit on entries that have not yet liquidated is due to the possibility that the CIT might not be able to order reliquidation or refunds on certain liquidated entries. While we think the stronger view is that the CIT can order a refund after liquidation, the more conservative approach would be to file a suit and seek a preliminary injunction. 
  
  The theory that the CIT might not be able to order reliquidation or refunds on certain liquidated entries stems in part from In re Section 301 Cases, 524 F. Supp. 3d 1355, 1365 (Ct. Int’l Trade 2021). In that case, the government argued in part that the CIT did not have the authority to issue refunds for certain liquidated entries related to Section 301 China tariffs. The court did not directly address whether the CIT had such authority, but explicitly stated that "the Court of Appeals has consistently refrained from relying on that language in finding the CIT has authority to order reliquidation or refunds in 1581(i) cases and has raised doubts about the CIT's authority to do so." See In re Section 301 Cases, 524 F. Supp. 3d at 1365–66; see also Target Corp. v. United States, 134 F.4th 1307 (Fed. Cir. 2025). 
  
  Nonetheless, we think the better view is that the CIT can order a refund after liquidation. In fact, In re Section 301 Cases states that "the Government's right to make a good faith challenge to the Court’s power should not leave Plaintiffs without a remedy should the exactions ultimately be determined to have been unlawful. The absence of a remedy for an unlawful exaction is the definition of inequity." See id., 524 F. Supp. 3d at 1371; see generally Shinyei Corp. of Am. v. United States, 355 F.3d 1297 (Fed. Cir. 2004). 
  
  Although we think the better view is that the CIT can order refunds on liquidated IEEPA entries, the issue has never been squarely addressed by the Federal Circuit or the Supreme Court, meaning there is risk a court could find that the CIT has no such authority. That is the reason some importers have been filing suit. One plaintiff that recently filed suit stated that the CIT "and the Federal Circuit have cautioned that an importer may lack the legal right to recover refunds of duties for entries that have liquidated, even where the underlying legality of a tariff is later found to be unlawful." See Compl. ¶49, Kawasaki Motors Mfr. Corp., U.S.A. v. CBP, No. 25-00264 (Ct. Int’l Trade filed Nov. 13, 2025). In other cases, the U.S. Department of Justice (DOJ) has responded to such motions by stipulating that post-liquidation relief would be granted. Such a stipulation might be all that an importer needs.
• For entries that have liquidated, importers can file protests on these liquidations pursuant to 19 U.S.C. § 1514. Protests must be filed within 180 days of liquidation. Assuming post-liquidation relief is available, another uncertainty is whether a protest must be filed. In our view, there are persuasive arguments that the answer is no. See United States v. U.S. Shoe Corp., 523 U.S. 360, 365–66 (1998). Nonetheless, because the issue is not entirely clear, and because we see little downside, importers should consider filing protests as to any liquidated entries. Note that filing protests may not suffice, because pursuant to 19 U.S.C. § 1514(a), CBP can only rule on "decisions of the Customs Service." In reviewing protests, CBP could take the position that collecting tariffs is considered an administrative task that they have been ordered to undertake, and not a "decision of the Customs Service." As a result, protests could be denied as non-protestable actions. The Supreme Court adopted that reasoning in finding certain assessments not to be protestable in U.S. Shoe Corp.
• If these protests are denied, importers can file suit on those entries pursuant to 28 U.S.C. § 1581(a). This statute permits importers to file suit to challenge the denial of a protest within 180 days of this denial. This would permit the CIT to review the substantive claims made in the protest and further protect an importer’s rights to future refunds. 

It is reasonable to conclude that importers who do not preemptively file suit and instead wait for the Supreme Court to rule will still be able to receive refunds. But since this is not guaranteed, companies may want to consider the more conservative approach and file suit before entries have liquidated, as several other companies have done. Ultimately, the decision of whether to file requires weighing several factors, including (1) the number of entries that are expected to liquidate and over what timeframe, (2) the amounts at issue on entries that could liquidate before the Supreme Court rules, (3) the cost of filing a suit in the CIT, and (4) the media coverage that may follow.

If you would like to consider such an action before the CIT, Miller & Chevalier's Customs team can assist you. Please contact the authors of this alert or any other attorney in our Customs & Import Trade practice.  

For more information, please contact:

Richard A. Mojica, rmojica@milchev.com, 202-626-1571

Adam P. Feinberg, afeinberg@milchev.com, 202-626-6087

Julia M. Herring, jherring@milchev.com, 202-626-1486

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

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