- with readers working within the Automotive and Healthcare industries
- within Energy and Natural Resources, Corporate/Commercial Law and Technology topic(s)
Based on the influx of calls regarding our opinion on navigating the potential IEEPA refunds, we have drafted the following:
Here is our promised guidance:
Current Status of Supreme Court Case
The legality of the Fentanyl IEEPA tariffs and the Reciprocal IEEPA tariffs is currently pending in the Supreme Court.A decision is expected in January, although it could come sooner, though the Court may not directly address refund mechanics. Instead, it could remand the issue to the Court of International Trade (CIT), which would delay guidance for several months.
Protests and Their Limitations
A protest could theoretically be filed within 180 days of liquidation if the Supreme Court rules favorably, but are likely not the correct mechanism before this event. The Federal Circuit has held that protests in constitutional duty cases are generally futile, as Customs lacks authority to decide such issues (Thomson Consumer Elecs., Inc. v. United States, 247 F.3d 1210, 1215 (Fed. Cir. 2001)). The CIT echoed this view in its preliminary injunction decision in AGS, using strong language that raises concern that protests may not be the correct avenue for refunds—except after the Supreme Court rules.
We are concerned that the CIT's language may mean payments collected by CBP before the Supreme Court's decision are not protestable, such that a Section 1581(i) lawsuit could be the only viable avenue for relief.
Recommended Litigation Strategy
We believe that filing a lawsuit offers the strongest protection of refund rights and the most expeditious path to recovery. While the motion for preliminary injunction in the lead case AGS was denied based on the Government's assurances that it would not oppose the Court's authority to liquidate or reliquidate entries, filing a CIT complaint under Section 1581(i) remains the most protective measure.
This action will:
- Secure standing in the litigation process
- Ensure eligibility for refunds regardless of entry status
- Reduce reliance on uncertain administrative remedies
Although cases may still be filed up to spring 2027 (two years from when the relevant Executive Order was issued or tariffs became active), preemptive filing now maximizes the likelihood of refunds.
Practical Considerations
This strategy would involve preparing a Summons and Complaint on your behalf and possibly a request to consolidate with the AGS case or another. We anticipate the cost of filing to be relatively minor compared to the potential benefit. We are charging a flat fee to initiate the lawsuit with any work after that being charged hourly, however, we don't expect the costs involved to be significant (mainly offering period updates in the case as well as offering guidance on any refund process).
We caution that some entries may liquidate before a case is filed. If that occurs, a protest could still be attempted, but its effectiveness remains highly uncertain given the CIT's strong language in AGS and the Federal Circuit's precedent.
Conclusion
Refunds could still be issued automatically without importer action, depending on how the Supreme Court or CIT resolves the matter. However, given the uncertainties, proactive litigation under Section 1581(i) remains the most protective and strategic step currently.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
