Law Firms Lay Out Refund Possibilities, Steps in Light of SCOTUS IEEPA Case
Importers who have paid tariffs imposed under the International Emergency Economic Powers Act should look to affirmatively safeguard their right to receive refunds should the Supreme Court vacate in some form President Donald Trump's tariffs imposed under the statute, various law firms said. The attorneys issued the alerts in the wake of the Supreme Court's decision to hear two cases on the legality of IEEPA tariffs on an expedited basis (see 2509090058).
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For instance, attorneys at Liang and Mooney outlined various refund scenarios and what steps importers should take in each scenario. Should the Supreme Court invalidate all IEEPA tariffs, "CBP would need to unwind the IEEPA Tariff program entirely," the attorneys said. "Refunds would likely be due on all covered entries, but the government may insist on importer-by-importer claims rather than issuing automatic repayments."
Should the high court only invalidate some of the tariffs, such as the reciprocal tariffs, refunds would only cover those invalidated measures, the Liang and Mooney attorneys said. Importers would have to "document which of their entries were subject to the specific tariffs ruled unlawful." Should the court settle the issue without a merits ruling and decide the cases on jurisdictional or procedural grounds, "recovery could be delayed for months or years," the attorneys said.
Regardless of what the ultimate outcome looks like, the Liang and Mooney attorneys said importers should track liquidations carefully, seek extensions, be ready to protest and prepare to file litigation at the Court of International Trade as a "backstop." The litigation could take the form of individual lawsuits to preserve the refund claims or a class-action lawsuit to recover the unlawfully collected duties.
Don't assume the refunds "will flow automatically," the attorneys said. "For entries that have already been liquidated, a protest would likely need to be filed to recover duties paid. Preserving claims now is the best way to avoid being left out later."
Attorneys at Davis Wright echoed these sentiments, also acknowledging the need for importers to be proactive, particularly in light of the Supreme Court's recent decision in Trump v. CASA, in which the court greatly pared back the availability of nationwide injunctions.
For entries on which importers have paid the reciprocal or trafficking tariffs, which are the tariffs being challenged at the Supreme Court, importers should "consider requesting an extension of liquidation" based on the Supreme Court's consideration of the case, the attorneys said. "In the event that the trafficking and reciprocal tariffs are finally held unlawful, an importer may then correct any unliquidated entries and expect a refund at liquidation." Since none of these tariffs were in effect before March 2025, "this course of action should cover the vast majority of subject entries at this point in time."
Importers of goods subject to IEEPA tariffs not covered by the court cases -- the additional 40% tariff on Brazil and the 25% additional tariff imposed on India for its oil purchases -- should also take action, the law firm said, because a ruling against the reciprocal and fentanyl tariffs might put those other IEEPA tariffs on shakier ground. "The actions above should be taken with respect to any duties paid pursuant to tariffs imposed under IEEPA, whether that tariff is the subject of the litigation or not."
For entries that have been liquidated, importers should consider filing a protest and ask for a stay of the decision on the protest until after the case is resolved, the Davis Wright attorneys said. If the protest is denied, consider filing a Section 1581(i) suit at CIT "both as a fail-safe approach attempting to bypass the protest route and in light of CASA."
It's "imperative to keep good records of the duties paid, as they are paid, so that refund claims can be substantiated, whether in coordination with customs brokers or in-house, and liquidation statuses can be monitored to avoid missing deadlines," the attorneys said. The release said importers should be "regularly downloading payment data from CBP's Automated Commercial Environment (ACE) to keep records complete."