IEEPA Refund Litigation Update: Government takes “No Lawsuit, No Refund” Position for Certain Entries

The U.S. Department of Justice (DOJ), on behalf of Customs and Border Protection (CBP) filed a motion on May 29, 2026 that provides an important and increasingly explicit preview of how the DOJ views IEEPA tariff refunds. The motion, nominally about whether a CBP Commissioner must testify as ordered by the Court of International Trade (CIT), contains statements that signal:

1. intent to appeal the CIT’s blanket order of refunds for all affected customers, if the CIT does not amend the blanket refund order in the ongoing IEEPA tariff refund litigation;
2. for liquidated entries with a suit on file with the CIT, CBP does not have authority to issue a refund without a customer specific court order; and
3. the DOJ’s position that without a customer specific lawsuit filed with the CIT, no refund pathway exists for liquidated entries.

At a high level, the filing reinforces that the Consolidated Administration and Processing of Entries (CAPE) system will not result in a refund for all importers. Depending on the full extent of the DOJ’s appeal of the CIT’s blanket refund order, the status of CAPE could be in flux. Refund entitlement for many entries will depend on importer-specific litigation at the CIT, not a universal remedy.

The DOJ’s Motion is available here.

The DOJ divides impacted entries into three categories, with materially different refund pathways.

1. Unliquidated or Nonfinal Entries

CBP retains administrative control over these entries and is already processing refunds in the CAPE system. If you have received refunds from CBP, it is likely for this type of entry. While the filing does not distinguish between types of unliquidated entries, it is important to note that phase one of CAPE is only able to process the simple unliquidated entries, that is, those entries that do not have any other unique identifiers about them. For example, phase one cannot process:

• entries for which liquidation is final;
• entries flagged for reconciliation, Entry Type 09 (Reconciliation Summary);
• entries with open or suspended protests;
• antidumping and countervailing duty entries pending liquidation where the U.S. Department of Commerce has issued liquidation instructions;
• entries not filed in CBP’s online system, the Automated Commercial Environment (ACE), or without a liquidation status in ACE;
• entries covered by an open drawback claim.

CBP has said that some of these entries may be covered in a “Phase Two” of the CAPE system, but the DOJ’s intent to appeal the CIT order makes that status uncertain.

2. Liquidated Entries with Pending, Importer-Specific, CIT Lawsuits

For entries that are finally liquidated and already subject to a CIT case, the government’s position is clear:

• CBP has no authority to reliquidate or refund absent a court order.
• Relief must occur through “importer-specific orders requiring reliquidation.”

This is a direct rejection of the notion that refunds will be administered broadly once the Court resolves overarching legal questions. Instead, each importer would be required to secure relief in its own case. It is unclear whether the DOJ’s position is that a CIT case is required importer-by-importer, or entry-by-entry. But it is clear that the DOJ does not consider itself to have authority to issue a refund without a court order that is specific to each importer.

3. Liquidated Entries Without Filed Lawsuits

The most consequential position in the filing concerns entries where no lawsuit has been filed:

• The CIT has attempted to order “universal” reliquidation covering all similarly situated importers.
• DOJ states this exceeds the Court’s jurisdiction and equitable authority and will be challenged on appeal.
• The government intends to seek a stay of any relief as applied to non-party importers.

That means, if you have not filed a case seeking refunds at the CIT, the DOJ’s position is that no refund pathway exists for liquidated entries.

Filing suit at the CIT to preserve right-to-refund has always been the most cautious step importers can take to protect their rights. Now, the DOJ’s position is that a CIT lawsuit is required. Entry identification is critical. Importers must distinguish between:

• entries that CBP will process, and
• entries that require judicial relief.

As those categories are in flux, it is likely best practice to seek relief from the CIT for all refunds.

The government’s position leaves little room for retroactive inclusion. If universal relief is vacated or stayed, non-party importers may be excluded entirely. Importers should expect continued fragmentation.

Rather than a single coordinated refund process, the landscape is evolving into limited categories plus parallel, importer-by-importer litigation.

The government’s filing confirms that the IEEPA refund process is not converging toward a unified solution. The central issue—whether the CIT can compel relief for non-party importers—will likely be resolved on appeal. Until then, importers with liquidated entries face a narrowing window to preserve potential claims.

For liquidated IEEPA entries, the government’s position is clear: no lawsuit, no refund.

For more information on tariff refunds or CIT litigation, please contact:

• IEEPA Tariff Refund Questions: Orrie Walsvik, Jeff Dunn
• CIT Litigation: Joe Olson, Orrie Walsvik
• Government Relations: Sarah Helton, Michael Best Strategies