Timeline of IEEPA Litigation and CAPE Phases

After the U.S. Supreme Court struck down President Trump’s IEEPA tariffs as unconstitutional in February 2026, the Court tasked the U.S. Court of International Trade (CIT) with developing refund procedures for importers who paid IEEPA tariffs. CIT Judge Richard K. Eaton then issued an IEEPA tariff refund order for all importers that paid such tariffs, regardless of whether they formally sought relief through CIT. The U.S. Government appealed Judge Eaton’s refund order on June 2, 2026.

In response to Judge Eaton’s order, and while the U.S. Government’s appeal is pending, U.S. Customs and Border Protection (CBP) has developed the following phased refund system through the Consolidated Administration and Processing of Entries (CAPE) feature of the Automated Commercial Environment (ACE):

• Phase 1 of CAPE opened on April 20, 2026. It entitles importers to refunds for entries that are either unliquidated or were liquidated within the past 80 days.
• Phase 2 is expected to open on or around June 29, 2026. It will cover Phase 1 entries (unliquidated or liquidated within the past 80 days) that are flagged for reconciliation.
• Phase 3 is expected to open within four weeks of Phase 2. It will only refund entries for which CIT orders reliquidation following a plaintiff’s filing an action in the CIT and requesting such order.

The Meaning of the Appeal, and its Impact on the CAPE Program

The CAPE phasing system–in particular, Phase 3–illustrates the disagreement between CIT and the U.S. Government: CIT found all importers eligible for relief for all entries subject to IEEPA, while the U.S. Government posits that importers must file with CIT and receive reliquidation orders to receive relief for entries not covered by Phases 1 or 2 of the CAPE program. On appeal, the Government may argue that CIT lacks the authority to order refunds to importers that were never parties to CIT litigation. The argument shows at least some promise; before the Supreme Court ruled on IEEPA tariffs, the Federal Circuit had found that while IEEPA tariffs were unconstitutional, CIT could not stop the imposition of tariffs nationwide on its own authority.

As CBP has stated that it is voluntarily refunding duties on unliquidated entries, the Government’s appeal of Judge Eaton’s order likely will not impact Phase 1 of the CAPE program. The impact of the appeal on Phases 2 and 3 of CAPE is less certain and will likely depend on the scope of issues raised at the Federal Circuit. However, given that Phase 3 of CAPE already covers CIT plaintiffs seeking and obtaining reliquidation orders, it appears that the appeal will not delay refunds for such plaintiffs.

Action Items for Importers

• Consider filing an action with CIT and seeking a reliquidation order (assuming the importer has liquidated IEEPA tariff entries that do not fall under Phases 1 or 2 of CAPE). For importers who do so and obtain an order, the question becomes one of refund timing only, rather than one of refund eligibility in the case of those who do not file.
• File the appropriate CAPE Phase 1 and Phase 2 (forthcoming) declarations for subject entries that are unliquidated or were liquidated within the past 80 days.
• Confirm that all bank account information is properly configured in ACE to avoid refund payment delays. ACE requires importers to have U.S. bank accounts, so importers of record with foreign bank accounts only should consult with brokers and/or counsel.

Braumiller Law Group will continue to monitor the U.S. Government’s appeal of CIT’s IEEPA tariff refund order and will provide further updates as they become available. If you have any questions, feel free to contact bob@braumillerlaw.com.