As the nation awaits the Supreme Court’s decision in V.O.S. Selections v. United States, the challenge to President Trump’s International Emergency Economic Powers Act (IEEPA) tariffs, importers are pondering whether, and how, to assert claims for refunds of these tariffs. The stakes are huge: approximately $130 billion (and counting) in IEEPA tariffs may be eligible to be refunded if the Supreme Court, as widely expected, holds the tariffs to have been illegally or unconstitutionally imposed.

To date, over 1600 lawsuits have been filed in the United States Court of International Trade, invoking that court’s 28 U.S.C. §1581(i) “residual” jurisdiction. The Court has indicated that, so long as the Executive Orders imposing the tariffs are in place, traditional protest remedies are “futile”, so importers can proceed to court to seek refunds without filing protests. The Court has also indicated that if these plaintiffs prevail, it has the power to order reliquidation of entries, refunding the duties plus interest.

While over 1600 refund cases have been filed to date, other importers – including some major ones – remain on the sidelines, possibly awaiting the Supreme Court’s decision before filing for refunds. That could be a risky strategy – once the Executive Orders imposing the tariffs are struck down or enjoined, the courts may decide that protest remedies must be exhausted. This may occur within days after the Supreme Court issues its decision. So if your strategy is to hold back and wait for the Supreme Court’s decision, it may be prudent to have counsel draw up lawsuit documents now, so they can be filed immediately after the V.O.S. Selections decision is announced.

Those electing to proceed by protesting the liquidation of their entries may be in for a nasty surprise. Both Customs and the Department of Justice have indicated that Customs intends to deny those protests, on the ground that Customs’ assessment of IEEPA duties is a “ministerial” act which does not involve a protestable “Customs decision”. While this is a questionable position, once an importer’s protest is denied, it will have only 180 days to commence suit in the CIT to challenge the denial of its protest. So the importer may wind up in court anyway, potentially subject to government discovery requests, and may find its refunds delayed by 2-3 years while the “protestability” question is litigated.

There may be benefit to following a “belt and suspenders” approach – filing suit in the CIT and filing protests as a protective matter.

But time runs short. The Supreme Court may issue its decision imminently, and importers will need to scramble to protect their rights to refunds.

Please contact a Neville Peterson professional if you have questions concerning the best way to secure refunds of IEEPA tariffs.