The Court of International Trade (CIT) issued an order March 4 instructing U.S. Customs and Border Protection to liquidate unliquidated entries without regard to the IEEPA tariffs and to reliquidate without the IEEPA tariffs any entries that have been liquidated but are not yet final. The order does not apply to finally liquidated entries. The court will hold a non-public conference March 6 at 10:00 a.m. EST to discuss further proceedings, including matters related to liquidated entries, importers that have not filed suit, and at least initial ideas from CBP on a method for IEEPA tariff refunds to be processed.
This order, which applies to all importers whether or not they have sued, is expected to be appealed by the government to the U.S. Court of Appeals for the Federal Circuit (CAFC). The CAFC already vacated the CIT’s original order in the V.O.S. Selections v. Trump case on the ground that it may have been an impermissible universal injunction, and it is possible that the CAFC will apply that same reasoning to this order.
In discussing his order, Judge Eaton said he thought the refund process should not be chaotic or result in a mess, and that CBP should have the capability to refund now using its regular procedures. Judge Eaton further stated that he will be assigned to all pending IEEPA cases and will decide all refund issues, including in V.O.S. Selections v. Trump. Judge Eaton also said that the court did not want importers to have to file suit to obtain refunds, and that the court did not want to deal with a slew of additional cases.
Meanwhile, the Department of Justice expressed its position that importers should have to file suit to obtain a refund for entries that have liquidated. It is unclear whether the government was referring to liquidation or final liquidation.
This order, however, is not the last word on IEEPA tariff refunds. We still advise importers to protest liquidations within 180 days and to also consider filing suit at the CIT for a refund, especially if entries have finally liquidated, in which case a suit may be the only path to obtaining refunds for those entries.
For more information, please reach out to attorney Jason Kenner at (212) 549-0137 or via email. You can also contact us at messages@strtrade.com or via your usual ST&R contact.
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